GNSO Council Teleconference Minutes

23 January 2004.

Proposed agenda and related documents

List of attendees:
Philip Sheppard - Commercial & Business users C.
Marilyn Cade - Commercial & Business users C. absent, apologies, proxy to Grant Forsyth/Philip Sheppard
Grant Forsyth - Commercial & Business users C.
Greg Ruth - ISCPC - absent, apologies, proxy Tony Holmes
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars
Ross Rader - Registrars
Bruce Tonkin - Registrars
Ken Stubbs - gTLD registries
Jordyn Buchanan - gTLD registries
Cary Karp - gTLD registries
Lucy Nichols - Intellectual Property Interests C
Niklas Lagergren - Intellectual Property Interests C
Kiyoshi Tsuru - Intellectual Property Interests C.
Jisuk Woo - Non Commercial users C. - absent
Marc Schneiders - Non Commercial users C.
Carlos Afonso - Non Commercial users C. - absent, apologies, proxy to Marc Schneiders
Alick Wilson
Demi Getschko
Amadeu Abril I Abril

17 Council Members

Barbara Roseman - Staff Manager

Christopher Wilkinson - GAC Liaison
Thomas Roessler - ALAC Liaison
Elisabeth Porteneuve - ccTLD Liaison

The WHOIS Task Force Chairs were asked to join the call.
Jeff Neuman - WHOIS Task Force 1 Chair
Brian Darville - WHOIS Task Force 3 Chair

Glen de Saint G�ry - GNSO Secretariat

MP3 recording

Quorum present at 19:08 UTC,

Bruce Tonkin chaired this teleconference.

• Item 1: Approval of the Agenda
  Added to the agenda
  Call for TOR change for "Approval Process for gTLD Service Changes"
  
• Item 2: Summary of last meeting, December 18, 2003:
  
  Bruce Tonkin, seconded by Philip Sheppard moved the adoption of the December 18, 2003 minutes.
  The motion was carried. Lucy Nichols, Niklas Lagergren, Kiyoshi Tsuru abstained (absent at the December 18, 2003 meeting)
  
  Decision 1: Minutes of the December 18 meeting adopted.
  
  Item 3: Approve timelines for WHOIS task forces
  Receive an update from the WHOIS task force chairs:
  Jeff Neuman - Task force 1: Restricting access to WHOIS data for marketing purposes
  Jordyn Buchanan - Task force 2: Review of data collected and displayed
  Brian Darville - Task Force 3: Improving Accuracy of collected data - chair - Brian Darville Brian Darville, Jeff Neuman, Jordyn Buchanan
  
  Approve timelines for: Submission of constituency statements
  Distribute Preliminary Task Force Report
  Publish Task Force Report (Initial Report)
  Publish Final Report
  
  Barbara Roseman reported that the three task force chairs, the GNSO Chair and the Staff Manager had met on Thursday, January 15 to develop a timeline to coordinate the task forces' work. The goal was to attempt finishing the work by the end of May, in sufficient time for the ICANN Board to consider the final report at the ICANN Board meeting in June, and if additional work or modifications were necessary, these could be undertaken before the ICANN July meeting in Kuala Lumpur where the ICANN Board would have the opportunity to adopt the final report or not.
  
  In presenting the timeline to the task forces, concern was expressed on the constituency statement timing. It was felt that the constituencies should have the new data available to review before submitting their statements. It was suggested that the constituency statement timing be delayed till late March to allow for sufficient review of the additional data without disrupting the general timelines.
  Barbara Roseman proposed another round of task force meetings before signing off on the dates for the GNSO Council to approve on the February 5 meeting before being sent to the ICANN Board for approval.
  
  Bruce Tonkin summarized that the aim was to complete the work of the 3 Whois task forces in time for the Board to approve the policy recommendations in its Kuala Lumpur meeting in July. The GNSO Council will need to approve the recommendations one month before that date.
  Planning for the coming months and the main dates the task forces have to sign off on:
  Plan the work for the ICANN meeting in Rome
  Schedule time for when the constituency statements are due
  Schedule time for completion of the preliminary task force report which would contain the outcome of the constituency statements
  Date for publishing the report
  20 Day public comment period
  Final report
  GNSO Council meets to discuss final report
  
  Jeff Neuman, task force 1 chair, on restricting access, reported that a questionnaire had been developed to send out to a list of non-marketing users of Whois information, asking questions such as: where they obtained their Whois data, whether is was from web based or port 43 access, whether there were alternate sources for the data they were seeking and what would be the effect on their organization if port 43 was shut down? A call, soliciting constituency statements, would go out week beginning 26 January, 2004. The task force was also compiling a needs and justifications chart which would contain information gathered from the survey, past ICANN workshops and testimony gathered from the Federal Trade Commission (FTC) and Organization for Economic co-operation and development (OECD). There was an interim report anticipated for the ICAO Rome meetings which would be an extension of the needs and justifications chart, as well as good information to discuss at the workshop, basically to start gathering feedback information for policy recommendations. The task force was progressing well.
  
  Brian Darville, task force 3 chair, on data accuracy, reported that with regard to milestone 1, Registrars had been formally contacted, surveyed and the results summarized on their current techniques for collecting and verifying if the data was accurate. Questions were drawn up for inclusion in a ccTLD survey by CENTR and were also submitted to ICANN staff for distribution to other ccTLDs. Questions were prepared to send to companies and other industries (the list is in preparation) which undertake business transactions online for their methodology for verification of their customer data. These questions should go out at the beginning of the week, 26 January and the responses should be returned by February 16 to be included in an interim report that should be completed a week before the ICANN meetings in Rome, on February 25. Significant progress has been made. Call for constituency statements would be made during the week, 26 January, however the task force, as whole, believed that meaningful information from the constituencies was not likely unless they had had the opportunity to comment on the data gathered from the survey, thus the return date was scheduled for March 12.
  Bruce Tonkin commented that the constituencies could put it on their agenda for Rome so that they could start developing their main statements.
  
  Jordyn Buchanan, task force 2 chair, on data collection and display, reported that a number of questions had been put together that would be sent out, coordinated through the ICANN Staff to:
  all the constituencies, in terms of how the constituency members make use of data elements, whether or not specific data elements are required used widely to determine whether they remain in the public domain and public in the Whois
  the Registrars constituency in particular who are responsible for doing more with Whois than any other group,
  ccTLDs, who are conducting a survey of their own and the ccNSO launching group and
  the Government Advisory Committee (GAC) to get an understanding of the privacy legislation and policy in the different countries that may be relevant to the display and collection of Whois data.
  The basic work for the questionnaires is complete. The available data from the Organization for Economic co-operation and development (OECD) and Electronic Privacy Information Center (EPIC) is being studied to find out how data is being used.
  The task force circulated a schedule that was longer than the current proposed timeframe for the other two task forces, but it was thought necessary in the light of the milestones to be covered and there should be sufficient time to develop good policy positions.
  
  Bruce Tonkin commented that different advisory bodies would comment formally during the public comment period, but task forces could notify the various advisory committees and allow them to pass surveys onto their members if appropriate. The individual members would then respond directly to the task force.
  
  Christopher Wilkinson commented that it would be useful to see the questionnaires to understand the questions and sound the GAC working group. He mentioned that it was not sure what the GAC response would be and that some members were reluctant to respond country by country, while the GAC would want to advise the ICANN Board on the outcome of the process.
  
  Elisabeth Porteneuve commented that she would undertake to distribute the questionnaire to all the ccTLDs.
  Barbara Roseman requested that all responses be sent in simple text form to facilitate data coordination.
  
  Item 4: Discuss constituency statements on the Procedure for use by ICANN in considering requests for consent and related contractual amendments to allow changes in the architecture or operation of a gTLD registry
  - the intent of this discussion is to provide input to the Staff Manager to allow production of a Preliminary Report.
  
  Bruce Tonkin referred to the Business Constituency's request to alter the terms of reference.
  Grant Forsyth addressed the subject referring to the Commercial and Business Users Constituency's e-mail to the GNSO Council which stated that it was not until responding that the constraints found, built into the terms of reference by those matters considered to be out-of scope, were inappropriate. There was the question as to the dual relationship of ICANN with the Registries. ICANN is a contracting party and party to "the" contract with the registries, but ICANN also performs a much wider role and it is in the fulfillment of its wider role that it is suggested it should not be constrained by whatever is in the contract.
  Grant Forsyth, on behalf Commercial and Business Users Constituency suggested that the two constraints in the "Out-of-Scope" be removed, viz.
  A) Changes to the nature of the agreements between ICANN and the registry operators
  B) Additional obligations on registry operators or gTLD sponsors beyond what is already specified in their existing agreements.
  
  Bruce Tonkin summarized saying that not changing the Registry contracts was seen as the constraint.
  Ken Stubbs and Jordyn Buchanan spoke out strongly against changing the terms of reference, referring to a vote against further deliberation of the terms of reference during the December 2, 2003, GNSO Council teleconference and the fact that it would pervert the timeline for the process.
  "Cary Karp, seconded by Jordyn Buchanan proposed a procedural motion: To defer the vote to initiate the policy development process for a period of 14 days for further refinement of the terms of reference.
  The motion failed with 21 votes against and 6 registry constituency votes in favour. "
  Barbara Roseman commented that changing the terms of reference was not advisable at this stage as constituency statements had already been submitted and that it was possible to draft a process that would be independent of specific contracts.
  Tony Holmes added that if a substantial issue came to light, it should not be ignored, but focus on such an issue must not result in an open ended call for review.
  Bruce Tonkin observed from a process point of view that the terms of reference were to assure convergence on a policy outcome rather than imply covering everything in the policy. It would be appropriate for a constituency statement to indicate the current views of the constituency taking into account the terms of reference. If wider issues were raised, nothing in the policy development process constrained these and the statements could be included. The options open to accommodate such suggestions were:
  to incorporate the suggestion in the constituency statements, if there was a consensus opinion it could form a consensus policy
  or suggest scheduling a separate follow up policy development process.
  This process was generally supported by all the Council members and the liaisons.
  Grant Forsyth, chose not to put a motion forward to change the terms of reference, thanked fellow councillors for their willingness to discuss the matter and would include additional comments in the Commercial and Business Users constituency statement.
  
  Christopher Wilkinson, commented that it was useful to have a stable terms of reference and it was necessary to have discussion material for the ICANN meetings in Rome.
  Before leaving the call, a meeting between the Government Advisory Committee (GAC) and the GNSO Council, to discuss current work projects, was suggested on Tuesday, 2 March, at 17:30 to 18:30 (5:30 pm to 6:30 pm). It would be a closed session but consistent with previous meetings, the GNSO Chair invited all GNSO council members to be present.
  
  Item 4: Discuss constituency statements on the Procedure for use by ICANN in considering requests for consent and related contractual amendments to allow changes in the architecture or operation of a gTLD registry
  - the intent of this discussion is to provide input to the Staff Manager to allow production of a Preliminary Report.
  
  Bruce Tonkin requested a summary from each constituency on their draft statement submitted on the Approval Process for gTLD Service Changes.
  Marc Schneiders, reported for the Non Commercial Users constituency (NCUC) stating that there had been very little time to draft a statement. The NCUC believed that there was a distinction between different aspects of the issues:
  1. technical coordination such as in the case of Sitefinder and
  2. consumer protection where ICANN did not contribute very much. There should be clear guidelines as to what issues could be dealt with by ICANN staff and what issues need to go through the constituency process.
  
  Niklas Lagergren reported for the Intellectual Property Interests constituency supporting the conclusions of the Staff Manager that the current informal process had led to inconsistent decisions and insufficient justification for those decisions.
  The IPC comments try to outline what a formal process should look like. Key factors were considered to be efficiency, openness and transparency through a three-tiered approach to assure the certainty needed by the registry community.
  Requests by a registry operator would go through an initial review, to determine whether the proposed change:
  1) is consistent with the current registry contract;
  2) requires a contract modification; or
  3) requires ICANN approval.
  If the answer to 2 and 3 were yes, it would go to the second tier, "quick-look" analysis that would determine:
  1. Will implementation of the registry operator's requested change harm the legitimate interests of third parties?
  2. Will implementation of the registry operator's requested change threaten stability or security of the Internet?
  3. Will implementation of the registry operator's requested change violate an existing ICANN policy?
  If any of the answers were affirmative it would proceed to the third tier:
  Evaluation and consultation, where the Final Evaluation Notification report would contain a call for all affected stakeholders to appoint designated representatives, and outside experts to participate in a task force to further evaluate and consider the issues therein. This task force would produce a report which would be sent to the ICANN ¨President setting out the recommendations.
  A suggested timeline for the process has been included.
  
  Bruce Tonkin commented that there were no external experts called on in the second tier.
  
  Tony Holmes reporting for the Internet Service Providers and Connectivity Providers Constituency (ISPCP) stated that the constituency welcomed the call for considering a deterministic, well-defined process for changes in the names space. Recent events had clearly shown that solely relying on negotiation and implementation of contracts with key operators of names related services in the Internet to achieve this goal, were insufficient and could not guarantee success. All stakeholders were affected.
  Under no circumstances should a registry be allowed to determine � on their own � whether a new �service� was compliant with existing contracts or policies, or determine if a new �service� would have any impact on the stability and reliability of the Internet.
  Transparent Consideration - Those suggesting fundamental changes to the architecture or behaviour of the Internet must give prior, effective, disclosure and allow examination by the responsible technical bodies.
  Recommendation:
  Quick Look
  The ISPCP believed that the �Quick Look� provision of the Staff Manager�s report currently raised a number of concerns.
  In particular, the ISPCP would like to make the following suggestions:
  � The �Quick Look� process needs to be explicitly spelled-out so that all parties have a common understanding of exactly what �Quick Look� means.
  � Any �Quick Look� process should give a full explanation of what role the gNSO plays in the �Quick Look� activity.
  � The �Quick Look� process should have agreed and effective reporting mechanisms in the interest of transparency.
  � In the event that the �Quick Look� process fails to accurately assess the impacts of a new service on the Internet, there must be an effective form of recourse for ICANN and the community.
  � Some metric needs to be established that effectively and deterministically decides if a service proposal is eligible for the �Quick Look� procedure. This metric should be based on full community consultation.
  Finally, any process must have a process for appeals.
  
  Grant Forsyth reported that the Commercial and Business Users constituency (BC) report was not completed due to internal consultation that was ongoing. In addition, the specific responses to the 4 main tasks identified in the terms of reference were not yet complete and would be posted when consultation closed. The BC statement however seemed to be along the lines of the other statements that were submitted.
  
  Jordyn Buchanan stated that the gTLD Registries constituency had not yet submitted a formal response as it was an important issue with high priority and needed thorough deliberation.
  Ken Stubbs added that due to the executory proposals in the terms of reference there had been a desire to step back and look more closely at what could be commented on.
  
  Thomas Roessler, reporting on the At Large Advisory Committee's (ALAC) proposals stated that it was a preliminary statement, comments were being solicited and it was primarily analytical in nature. Three main points could be identified:
  On the procedural side, an accountable, transparent and objective processes that ensured that policy was applied in a neutral manner was important. In particular, the process should provide opportunities for all relevant parties (including GNSO constituencies and Advisory Committees) to get involved, and should, in particular, incorporate opportunities for meaningful and early public comment.
  It was considered helpful to ask in the quick look analysis whether the success of a new registry service was observable. Would it be possible to use market feedback to assess success. Where the community's interest is measurable in market terms, "regulatory" decisions can and should be avoided.
  Conversely, where market feedback could not accurately define the community's interest because of the absence of a competitive market, or because of the imposition of spillover costs, the community's interest must be defined in another way. For example, imagine that a registry imposed a change in behavior affecting all incumbent registrants. Those registrants would have to incur high switching costs in order to change to another TLD; that fact would distort the market's response to the registry change.
  Where a proposed change failed this test, it should be the registry's burden to prove that no harm is caused by the proposed change.
  The focus was on three areas of significant harm that could be caused by changes to registry architecture or operations:
  Changes that affected the network's openness for innovation;
  changes that caused cost at the edges but benefits for the registry; and
  changes that enabled registries to leverage their monopoly position into different markets where they could then compete unfairly.
  
  Bruce Tonkin reported that the Registrar constituency were in the process of voting on a draft constituency statement. The current draft basically listed some of the areas in the contract that required consent. One of the key points that the registrars made was that the definition of Registry services should be clear and consistent across all registries so that in terms of the definition there would be no distinction between sponsored and unsponsored registry services. In terms of the issues that ICANN would need to consider, the constituency constrained itself to what was in the ICANN mission and core values, namely:
  - Preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.
  - Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
  - Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest
  Changes to reports to ICANN, changes to specification data were seen as potentially possible for a fast track process whereas changes that changed the nature of the registrar/registry agreement or changes that related to registry services would require a more extensive review.
  Use of external experts were recommended to decide whether there were issues in operational stability or reliability. It was suggested that those terms be more clearly defined so that there would be better understanding of what operational stability and reliability meant.
  In terms of the appeal process, it was noted that there was an existing appeal procedure within the ICANN bylaws that could be used, but there was not yet agreement in the Registrars constituency whether that process should be shorter.
  
  Bruce Tonkin suggested that the Staff Manager summarize and highlight the commonalties in the constituency statements for Wednesday 28 January so that the report may be studied before the next GNSO Council meeting on February 5, 2004.
  
  Item 5: Planning for ICANN meeting in Rome
  - proposed four PDP workshops
  - Council breakfast and invitation to Board
  - Council meeting and invitation to Board
  
  Barbara Roseman reported that Wednesday, March 3 had been set aside for Whois task forces 1, 2 and 3 policy development process
  The GNSO Secretariat would formally request that the ICANN Board be informed of the workshops and the GNSO Council meeting which would follow the workshops on Wednesday March 3, 2004.
  Bruce Tonkin stated that it was the custom for the GNSO Council, ICANN President, ICANN Board members and certain staff to meet informally before the constituency meetings to discuss policy related matters.
  The GNSO Secretariat reported that the informal breakfast meeting had been arranged for Tuesday 2 March, in the "La Sughereta Restaurant" close to the main lobby of the meeting venue, Hotel Meli� Roma Aurelia Antica, at 7:30 to 9:00.
  Invitations would go out in due course to the GNSO Council and a formal reminder sent to the ICANN President and Board members.
  
  Thomas Roessler suggested informing the GAC of the planned schedule for the policy development process workshops on Wednesday March 3.
  
  Item 6: WSIS
  - Marilyn Cade to report on outcomes of WSIS and any recommendations for action by ICANN
  Deferred in the absence of Marilyn Cade
  
  Item 7: Any other business
  Bruce Tonkin suggested deferring Philip Sheppard's proposed "Guidelines for producing an Issues report" the GNSO Council meeting agenda on February 5, 2004.
  
  Bruce Tonkin declared GNSO meeting closed, thanked everybody for attending.
  The meeting ended: 20:55 UTC

Next GNSO Council teleconference: February 5, 2004
see: Calendar