[council] Draft minutes of the GNSO Council teleconf. 28 September 2006

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

[council[at]gnso.icann.org]

Dear Council Members,

Please find the draft minutes of the GNSO Council teleconference held on 
28 September 2006.
Please note that there is a Summary of Work Items arising from the 
minutes at the end.
Please let me know if you would like any changes made.

Thank you very much.

Kind regards,
Glen
----------------------------------------------------------------------
28 September 2006

Proposed agenda and meeting documents

List of attendees:
Philip Sheppard - Commercial & Business Users C.
Marilyn Cade - Commercial & Business Users C.
Alistair Dixon - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC - absent
Tony Holmes - ISCPC
Thomas Keller- Registrars
Ross Rader - Registrars
Bruce Tonkin - Registrars - absent - apologies
Ken Stubbs - gTLD registries
June Seo - gTLD registries
Cary Karp - gTLD registries
Lucy Nichols - Intellectual Property Interests C - absent - apologies
Ute Decker - Intellectual Property Interests C - absent - apologies
Kiyoshi Tsuru - Intellectual Property Interests C
Robin Gross - NCUC.
Norbert Klein - NCUC. - absent - apologies
Mawaki Chango - NCUC - absent
Sophia Bekele - Nominating Committee appointee - absent
Maureen Cubberley - Nominating Committee appointee - absent - apologies
Avri Doria - Nominating Committee appointee

13 Council Members
(18 Votes quorum)

ICANN Staff
Dan Halloran - Deputy General Counsel
Kurt Pritz - Vice President, Business Operations
Denise Michel - Vice President, Policy Development
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Glen de Saint Géry - GNSO Secretariat

Maria Farrell - Policy Officer - asent - apologies

GNSO Council Liaisons
Suzanne Sene - GAC Liaison - absent - apologies
Bret Fausett - ALAC Liaison - absent

Rita Rodin - ICANN Board member

Quorum present at 12:10 UTC.

MP3 Recording

Philip Sheppard chaired this meeting

Approval of the agenda

Ken Stubbs requested an update on LSE report consultations.

Item 1: Update any statements of interest
No updates recorded

Item 2: Approval of the GNSO Council minutes of 20 July and 3 August 2006.
Ken Stubbs seconded by Marilyn Cade, moved the adoption of both sets of 
minutes.
Motion approved.

Alistair Dixon abstained from approving the minutes of 20 July 2006
Avri Doria abstained from approving the minutes of 3 August 2006

Decision 1: The GNSO Council minutes of 20 July and 3 August 2006 were 
adopted.
It was noted that status reports were required on work items in both 
sets of minutes.
A proposal was made to note action items at the end of the minutes and 
follow up on the progress at the next meeting.
Item 3: Correspondence
- Clarification sought by PDP-Feb06 task force on whether the outcomes 
of the PDP would affect gTLD contracts in existence at the time the 
Board approves the policy. See
http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-25aug06.pdf

The letter was resent to the Council list during the meeting.
http://gnso.icann.org/mailing-lists/archives/council/msg02867.html

Philip Sheppard proposed deferring the substance of the letter to the 
next meeting as some Council members had not seen the correspondence, 
but outlined the General Counsels response.
http://gnso.icann.org/mailing-lists/archives/council/msg02867.html
The letter opened by recognising the nature of the Council's request, 
the difficulty that faced the task force because there was no uniform 
language on consensus policy in terms of what was included or not under 
the consensus policy references in contracts which used wording such as, 
'that under certain circumstance the policy recommended by the GNSO 
Council can create binding obligations on registries and registrars'. An 
extensive example was given of the consensus policy clauses in the .jobs 
registry agreement which included five ' picket fence' categories of 
scoping areas for which consensus policies applied. It was difficult to 
be precise about what was in scope without knowing the exact nature of 
the issue and comparing it with the five picket fence categories.
Philip Sheppard referred to Bruce Tonkin's recommendation
http://gnso.icann.org/mailing-lists/archives/council/msg02865.html
I recommend that the GNSO Council ask the Board to delay making a 
decision on changes to the existing gTLD agreements (biz, info, org) 
until the Sao Paulo ICANN meeting in December 2006, and that the Board
at the time, take into account the level of consensus reached around the 
issues being considered in the PDP-Feb 06 task force.
There was general support for the PDP-Feb06 task force to continue its 
work and appoint an interim chair. Given the present 
situation,additional staffing support was required and that council 
should lend support to senior staff to examine providing additional 
resources, including support for a face to face meeting.
Ken Stubbs commented that the Registry constituency had strong feelings 
about delaying decisions on changes to the existing gTLD agreements, and 
was not in agreement with the delay.
The discussion was strongly in favour of the ICANN Board hearing the 
public discussion during and the transparency that the ICANN meetings in 
Sao Paulo would provide to critical issues that related to consensus policy.
Rita Rodin commented that the Board was clearly aware of the different 
factions in the community and as much information as possible given to 
the Board in Sao Paulo would be helpful.
The GNSO Council would assist the PDPFeb06 task force to prioritize issues.
The task force should not give up on concluding its work by Sao Paulo, 
what was being agreed was a worst case scenario if all the work was not 
concluded,
Philip Sheppard, seconded by Ross Rader proposed:
1. The GNSO Council resolves:

a) To instruct the PDPFeb06 task force to continue its work, to appoint
an interim chair
b) To instruct staff to propose a work schedule in agreement with the
interim chair and Task Force this week and carry it out
c) To ask the General Counsel within 14 days to list all ICANN
agreements sections on consensus policy
d) To ask the General Counsel within 14 days to compare and contrast the 
PDP06 Terms of Reference with the so –called “picket fence” consensus 
policy areas and provide a without prejudice assessment of likelihood of 
in or out of scope indicating uncertainty as necessary.
Passed by acclaim.

Philip Sheppard, seconded by Ross Rader proposed:

The GNSO Council resolves:

To request the Board to delay any decision on the .biz .info and .org 
agreements until the ICANN Board meeting after the Sao Paolo ICANN 
meetings 2006 and to take into account the current outcome of the 
PDPFeb06 task force at that time.
Avri Doria's friendly amendment was accepted:
'until the ICANN Board meeting after the Sao Paolo ICANN meetings 2006'

Roll call vote. The motion passed.
11 votes in favour,
(Marilyn Cade, Alistair Dixon, Philip Sheppard, Tony Holmes, Greg Ruth, 
Robin Gross, Ross Rader, Tom Keller, Avri Doria)
6 votes against,
(Cary karp, Ken Stubbs, June Seo)

(Kiyoshi Tsuru dropped off the call at the time of the vote)


Decision 2:
1. The GNSO Council resolves:

a) To instruct the PDPFeb06 task force to continue its work, to appoint
an interim chair
b) To instruct staff to propose a work schedule in agreement with the
interim chair and Task Force this week and carry it out
c) To ask the General Counsel within 14 days to list all ICANN
agreements sections on consensus policy
d) To ask the General Counsel within 14 days to compare and contrast the 
PDP06 Terms of Reference with the so –called “picket fence” consensus 
policy areas and provide a without prejudice assessment of likelihood of 
in or out of scope indicating uncertainty as necessary.
Decision 3:
The GNSO Council resolves:

To request the Board to delay any decision on the .biz .info and .org 
agreements until the ICANN Board meeting after the Sao Paolo ICANN 
meetings 2006 and to take into account the current outcome of the 
PDPFeb06 task force at that time.
Item 4: Proposed bylaws amendment to improve transparency with respect 
to contract approvals
- update from General Counsel on action with respect to the GNSO request 
of 18 August 05 regarding proposed changes to ICANN bylaws to improve 
transparency with respect to contract approvals
Philip Sheppard outlined the background to item 4 that related to an 
August 2005 request from the Council to the ICANN Board that the GNSO 
should have notification when there were changes in contract provisions 
made by ICANN agreements.
At the time there was a suggestion to change ARTICLE III: TRANSPARENCY 
in the bylaws
http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#III
and to amend Section 6 NOTICE AND COMMENT ON POLICY ACTIONS to add in 
'policies or contracts'. On examination, the General counsel's office 
suggested creating a new section 7 under the transparency article:
Notice and comment on gTLD agreement approvals
"With respect to any proposed GTLD registry or registrar agreement that 
includes material contractual provisions that substantially differ from 
other past ICANN agreements, ICANN will notify the GNSO Council and post 
the proposed agreement with a public comment forum on the ICANN website 
at least twenty-one days (and if practical, longer) prior to any final 
approval of the agreement."
Dan Halloran commented that the goal, in preparing this language, was to 
attempt to meet the GNSO's needs, while not (inadvertently) requiring 
the ICANN Board to post every consulting contract or grammar correction 
to a registry agreement. The original text from Jon Nevett suggested 
putting 'contract approvals' in section 6 which covers how ICANN treats 
proposed new policies that could affect third parties and in some cases 
parties that have agreed to comply with policies, but have not 
specifically agreed to follow a particular policy. In this case, proven 
bi-lateral agreements between ICANN and a contracted party which are 
recognised to have an impact on third parties. This clarified exactly 
which contracts would be subject, particularly any gTLD registry or 
registrar agreement with material provisions that substantially differed 
from past ICANN agreements.
This proposed new Bylaws provision would require ICANN to notify the 
GNSO Council and allow for at least a 21-day public comment period 
before approving any GTLD (sponsored or unsponsored) registry or 
registrar agreement that is substantially different from other past 
ICANN agreements:
The question arose whether 'substantially' would be the appropriate word 
as the circumstances related to contractual conditions that would result 
in some policy changes.
A substantial change to a TLD might not necessarily be a substantial 
difference from other TLDs. For example, changing dot aero from a 
restricted TLD for the airline transport industry to an open restricted 
TLD would be a substantial difference for dot aero but it would be the 
same as other ICANN contracts. This point should be caught in revised 
language.
Philip Sheppard noted that Council agreed in principle with a new 
section 7 but the issue was the precise wording.
It was suggested that Jon Nevett, the author of the original text, and 
Alistair Dixon work off line to make a joint proposal to present to 
Council at the next meeting on 19 October.
Marilyn Cade proposed, as a formal procedure, to invite the authors of 
proposals to the GNSO Council meeting at which the proposal would be 
discussed.
Item 5: Next steps with respect to Internationalised Domain Names (IDNs)
- the proposed terms of reference on an IDN PDP was reviewed in the 
context of the draft recommendations for new gTLD arising from the 
Amsterdam meeting
Philip Sheppard outlined that Council had agreed on a separate policy 
development process (PDP) on IDNs acknowledging the current PDP on new 
Top level domains as well. There was general agreement on the IDN terms 
of reference,
http://gnso.icann.org/issues/idn-tlds/issues-report-02aug06.htm#f
which following consultation, also had support from the Board and the ccNSO.
Since then there had been a set of recommendations from the new gTLD 
committee meeting in Amsterdam
http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm
which had led to a possible mismatch between the IDN terms of reference 
and the Amsterdam recommendations.
Olof Nordling reported that there was certain agreement on the same 
treatment for IDN and non IDN gTLD applications which should also apply 
to the pre-reservation of IDN gTLD labels in the first new gTLD round. 
In addition, the contractual conditions for any new gTLD would require 
observance of the IETF standards, RFC and ICANN IDN guidelines thus many 
of the foreseen issues in the IDN Issues report would be resolved by the 
recommendations and agreed principles leaving only details. Among the 
details, would be vetting strings, and the minimum length for strings, 
and inferring from the current practice, a minimum would be three code 
points for an IDN gTLD. In addition, the rules governing permissible 
scripts or language in an IDN label should be agreed upon before a 
request would be launched for the next TLD round, provided that 
pre-registration were accepted. A new issue, related to implementation 
would be the extent of the processes for vetting and checking in 
pre-registration. With regard to permissible scripts and language, the 
IDN guidelines would be strictly applied to top level domains. The 
number of issues that need to be dealt with in advance of a request for 
proposal would be reduced and others, such as the UDRP, would require 
modification for IDN and non IDN gTLDs which could be treated the same way.
Philip Sheppard suggested requesting Olof Nordling, working on IDNs and 
Liz Williams covering the PDP on new gTLDs to work together and examine 
a proposal for refined terms of reference bearing in mind the outcome of 
the Amsterdam meetings, overlap areas, and produce a list of work items 
on IDNs. At the next meeting it could be decided whether or not to go 
forward with a PDP mechanism on that set of issues or look at an 
alternative.
Comments indicated that the PDP provided a tool where policy was needed 
and a means of exploring issues to ensure the Council is informed and 
would be able to make informed decisions. The current terms of reference 
for IDNs seemed to require significant adjustment to take into account 
the experience gained and may have to be refined continually.
In essence there was no difference between one alphabet and another when 
used to indicate a top level domain label but because there was a 
political component which did not map neatly into the ccTLD or gTLD 
current dichotomy, either a new category of TLDs was needed or there 
should be clarity on which policy would apply.
Philip Sheppard proposed two work items:

Olof Nordling was requested to prepare for the next Council meeting on 
19 October 2006,
1. proposed changed terms of reference for IDNs, indicating clearly 
deletions and changes that related to the relationship between the IDN 
PDP current terms of reference and the present status of the new gTLD 
PDP Dec05.
2. take into account the country code and overlap issues which could be 
included in the same analysis or separately.

Item 7: Motion proposed by Philip Sheppard
Proposes revised text
http://gnso.icann.org/mailing-lists/archives/council/msg02861.html
Whereas:
Article X section 3.4 of the ICANN bylaws states: “The GNSO Council is 
responsible for managing the policy development process of the GNSO. It 
shall adopt such procedures as it sees fit to carry out that 
responsibility, provided that such procedures are approved by the Board, 
and further provided that, until any modifications are recommended by 
the GNSO Council and approved by the Board, the applicable procedures 
shall be as set forth in Section 6 of this Article”.
Article X section 6 of the bylaws states: “Initially, the 
policy-development procedures to be followed by the GNSO shall be as 
stated in Annex A to these Bylaws”.
Annex A of the bylaws contains procedures for the GNSO policy 
development process;
Experience has shown that the procedures of Annex A are inappropriate 
for the work of the GNSO;
Recommendation 5 of the 2004 GNSO Council review recommended changing 
the procedures;
The ICANN by-laws are not the place for such procedures which may need 
to be re-visited frequently.
The GNSO Council resolves:
a) To request ICANN staff to draft a new set of procedures within 30 
days reflecting the experience of previous PDPs and the recommendations 
of the Council review 2004;
b) To request ICANN staff to submit those new procedures to Council for 
approval;
c) To request ICANN staff to then inform the Board that the Council has 
adopted new procedures;
d) and that therefore the Council requests the Board:
- to approve its new procedures;
- resolves to delete Article X section 6 and Annex A of the by-laws;
- resolves to change section 3.4 to read: “The GNSO Council is 
responsible for managing the policy development process of the GNSO. It 
shall adopt such procedures as it sees fit to carry out that 
responsibility, provided that such procedures are approved by the Board. 
The Board will execute the following procedure within 60 days of the 
completion of a GNSO policy development process:
- In the event that the Council reached a Supermajority Vote, the Board 
shall adopt the policy according to the Council Supermajority Vote 
recommendation unless by a vote of more than sixty-six (66%) percent of 
the Board determines that such policy is not in the best interests of 
the ICANN community or ICANN.
- In the event that the Board determines not to act in accordance with 
the Council Supermajority Vote recommendation, the Board shall (i) 
articulate the reasons for its determination in a report to the Council 
(the "Board Statement"); and (ii) submit the Board Statement to the Council.
The background to this proposal was not only Council's experience with 
the PDP and the timelines, which were originally a set of guidelines, 
and then became the annex to the ICANN bylaws, but it also referred to 
an action item in the Partick Sharry review of the Council.
Discussion indicated that the proposal did not remove the PDP from the 
bylaws, but removed the management of all the sub elements of the PDP 
from the bylaws. It allowed flexibility in policy management 
appropriately in the hands of the Council rather than being enshrined in 
the bylaws.
While there was support for the proposal, Ken Stubbs, supported by Tom 
Keller and Kiyoshi Tsuru requested a specific delay for a vote to be taken.
Philip Sheppard, seconded by Alistair Dixon, proposed:

The GNSO Council resolves
to direct staff to begin gathering the information data, conduct the 
research and pull together all the back ground and historical 
information that would be needed for the review and then recommend 
changes to the PDP.
Passed by acclaim

Motion in Item 7 deferred.

Decision 4.
The GNSO Council resolves
to direct staff to begin gathering the information data, conduct the 
research and pull together all the back ground and historical 
information that would be needed for the review and then recommend 
changes to the PDP.
Item 6: Next steps for improving the GNSO structure and processes
Taking into account the 2004 review of the GNSO Council, the about to be 
released review of the GNSO by the London School of Economics, and the 
experience of the Council, consider the next steps to identify changes 
to be made, and identify any changes required in the bylaws to allow
these changes.

On Tuesday, 3 October, 2006, at 12:00 UTC, a teleconference is scheduled 
with a short powerpoint presentation from Prof. Patrick Dunleavy 
followed by a question and answer session for Council and constituency 
members and other interested parties.
The LSE, via scheduling through the Secretariat, was available to brief 
any constituencies on the LSE Report.
Marilyn Cade noted that it should not be interpreted as lack of interest 
because some constituencies did not request separate briefings from the LSE.
The ICANN Bylaws required a review of the GNSO, a report to be 
published, and the ICANN Board to review and take appropriate action on 
the report.
Denise Michel outlined a collaborative approach, forming 2 joint Board 
GNSO working groups to consider the LSE Report (annexes) and the 
previous Patrick Sharry report, to improve the GNSO policy activities, 
structure, operations and communication.
The mandate of the joint working groups would be to broadly solicit 
input and then recommend specific changes for the GNSO.
Issues to be addressed would include the policy development process, 
voting and representation on the Council, GNSO representation on the 
Board, the GNSO constituencies, stakeholder participation structure, 
staffing and support of the Council and constituencies, and other 
operational issues related to the workings of the GNSO, distribution of 
information and solicitation of comments, including improvement of the 
website and the use of mail server lists.
Denise further recommended that the working groups be populated by a 
combination of GNSO, community and Board members, with representation 
from the Government Advisory Committee and the At Large Advisory Committee.
In reaction to the joint working groups it was clarified that the 
Supporting Organisations made up ICANN as opposed to the ICANN Board 
dictating to the supporting organisations.
A comparative survey of policy making in other groups made up of 
multi-stakeholders was suggested.
A specific dedicated staff person was suggested to maintain the 
oversight and coordination of the joint working groups.

Item 8: Update on planning for Sao Paulo

The Secretariat posted a skeleton schedule to the Council list and 
councillors were requested to comment.
http://gnso.icann.org/mailing-lists/archives/council/msg02866.html

Item 9: AOB
No items stated.

Philip Sheppard formally closed the meeting and thanked everybody for 
participating.
The meeting ended: 13:05 UTC

Next GNSO Council teleconference 19 October at 12:00 UTC
see: Calendar


Summary of Work Items arising from the minutes:

1. A proposal was made to note action items at the end of the minutes 
and follow up on the progress at the next meeting.
2. Marilyn Cade proposed, as a formal procedure, to invite the authors 
of proposals to the GNSO Council meeting at which the proposal would be 
discussed.
3. Decision 2:
1. The GNSO Council resolves:

a) To instruct the PDPFeb06 task force to continue its work, to appoint
an interim chair
b) To instruct staff to propose a work schedule in agreement with the
interim chair and Task Force this week and carry it out
c) To ask the General Counsel within 14 days to list all ICANN
agreements sections on consensus policy
d) To ask the General Counsel within 14 days to compare and contrast the 
PDP06 Terms of Reference with the so –called “picket fence” consensus 
policy areas and provide a without prejudice assessment of likelihood of 
in or out of scope indicating uncertainty as necessary.
4. Decision 3:
The GNSO Council resolves:

To request the Board to delay any decision on the .biz .info and .org 
agreements until the ICANN Board meeting after the Sao Paolo ICANN 
meetings 2006 and to take into account the current outcome of the 
PDPFeb06 task force at that time.

5. New Section 7: Notice and comment on gTLD agreement approvals
It was suggested that Jon Nevett, the author of the original text, and 
Alistair Dixon work off line to make a joint proposal to present to 
Council at the next meeting on 19 October.
"With respect to any proposed GTLD registry or registrar agreement that 
includes material contractual provisions that substantially differ from 
other past ICANN agreements, ICANN will notify the GNSO Council and post 
the proposed agreement with a public comment forum on the ICANN website 
at least twenty-one days (and if practical, longer) prior to any final 
approval of the agreement."

6. Olof Nordling was requested to prepare for the next Council meeting 
on 19 October 2006,
1. proposed changed terms of reference for IDNs, indicating clearly 
deletions and changes that related to the relationship between the IDN 
PDP current terms of reference and the present status of the new gTLD 
PDP Dec05.
2. take into account the country code and overlap issues which could be 
included in the same analysis or separately.

7. Decision 4.
The GNSO Council resolves
to direct staff to begin gathering the information data, conduct the 
research and pull together all the back ground and historical 
information that would be needed for the review and then recommend 
changes to the PDP.
Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org