[ga] GNSO Council teleconference minutes - August 14,2003

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

[To: ga@xxxxxxxxxxxxxx; announce@xxxxxxxxxxxxxx]
[To: liaison6c@xxxxxxxxxxxxxx]

Please find the GNSO Council teleconference minutes, August 14, approved by
the GNSO Council at the teleconference September 25, 2003

http://gnso.icann.org/meetings/minutes-gnso-14aug03.shtml

15 August 2003.

Proposed agenda and related documents
http://gnso.icann.org/meetings/agenda-14aug03.shtml

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 - absent, apologies, proxy to Antonio Harris/Greg Ruth
Thomas Keller- Registrars
Ken Stubbs - Registrars
Bruce Tonkin - Registrars
Jeff Neuman - gTLD
Jordyn Buchanan - gTLD
Cary Karp - gTLD
Ellen Shankman - Intellectual Property Interests C. - absent, apologies,
proxy to Laurence Djolakian
Laurence Djolakian - Intellectual Property Interests C.
Lynda Roesch - Intellectual Property Interests C.
Milton Mueller - Non Commercial users C.
Chun Eung Hwi - Non Commercial users C. -absent, apologies, proxy to Milton
Mueller
Gabriel Pineiro - Non Commercial users C. - absent
Alick Wilson
Demi Getschko
Amadeu Abril I Abril

17 Council Members

Audri Mukhopadhyay - GAC Liaison - absent, apologies
Thomas Roessler- ALAC Liaison

Roger Cochetti, Budget committee chair attended for item 7 on the agenda.

Elisabeth Porteneuve - ccTLD Liaison

Glen de Saint Géry - GNSO Secretariat

Quorum present at 14:07 CET
MP3 recording
http://gnso-audio.icann.org/GNSO-20030814.mp3


Bruce Tonkin chaired this teleconference.

Item 1: Approval of the Agenda
Agenda approved


Item 2: Summary of last meeting
Philip Sheppard/Ken Stubbs moved the adoption of the minutes seconded by
Marilyn Cade.

The Council approved the adoption of the minutes, with Amadeu Abril l Abril
abstaining
Decision 1: Motion adopted.

Matters arising from the minutes:
1. The GNSO chair was asked to liaise with the president of ICANN in
connection with GNSO Council communication with the ICANN Board. Bruce
Tonkin did not discuss this but posted a suggestion to Council explaining
that the aim was to meet quarterly, via teleconference with the ICANN Board,
to brief it on policy work undertaken and address any issues with regard to
processes and procedures.
2. Liaise with the ICANN President on WIPO II recommendations - Item 3 on
the agenda.
3. Discussion about new gTLDs as raised by Jeff Newman to be addresses in
Item 8 Any Other Business

Item 3: Update on ICANN President's working group on WIPO-II recommendations

Bruce Tonkin reported that the ICANN President had invited 6 members from
the Government Advisory Committee to participate in the working group and
asked the GNSO Council to nominate 6 participants. Bruce recommended that
each constituency should nominate one person so that the GNSO Council
representatives on the President's working group would represent a broad
cross section of interests.

In response to a question from Jeff Neuman as to the purpose of the group,
Bruce Tonkin referred to:

A discussion by the Board regarding the appropriate next steps for
consideration of the WIPO recommendations

Whereas, the World Intellectual Property Organization (WIPO) sent ICANN a
letter dated 21 February 2003 providing information about two decisions,
concerning recommendations about the names and acronyms of International
Intergovernmental Organizations and about the names of countries, which WIPO
member states requested be transmitted to ICANN;

Whereas, in resolution 03.22 the Board requested the President to inform the
Governmental Advisory Committee, the Supporting Organizations, and the other
Advisory Committees of the 21 February 2003 letter from WIPO and to invite
their comments;

Whereas, advice and comments were received from the At-Large Advisory
Committee (ALAC), the GNSO Council, the Governmental Advisory Committee
(GAC), and the Intellectual Property Interests and the Commercial and
Business Users Constituencies of the GNSO;

Whereas, the Board has considered the advice and comments received, as well
as the discussion and analysis in the 1 June 2003 General Counsel's Briefing
Concerning Policy-Development Process on WIPO-2 Recommendations;

Resolved [03.83] that the President is directed to form, in consultation
with the chairs of the GNSO Council, the ALAC, and the GAC, a working group
including participants in the GNSO, the ALAC, and the GAC as well as Board
members, for the purpose of analyzing the practical and technical aspects of
implementing the WIPO recommendations, and notably the implications for the
UDRP; and

Further resolved [03.84] that the President and General Counsel are directed
to investigate and analyze legal aspects of the relationship between ICANN's
mission and the recommendations conveyed by the 12 February 2003 letter from
WIPO, and to report to the Board and to the working group formed under
resolution 03.83 on the result of that investigation and analysis. Among
topics to be considered should be whether implementation of the WIPO
recommendations would require ICANN to prescribe adherence to normative
rules, not based on established laws, for the resolution of competing
third-party claims to rights to register names.

Amadeu Abril l Abril clarified that the purpose of the ICANN President's
working group was not to look at implementation but to study the
implications, how, if and what, and to map out the question. Difficult legal
questions arise where protection is sought for matters which are not
protected under law at a national level. Six participants from the GNSO are
preferable to one, and at least some of those participants should have a
legal background in international law.

Marilyn Cade drew attention to the way WIPO l and WIPO ll had come about.
The former was a request for a fast track study with broad participation
followed by a process in ICANN to determine what outcome should be related
to the UDRP. The latter was a study of the implications of the
recommendations that came from within WIPO itself.


Bruce Tonkin, seconded by Milton Mueller, proposed:

that the GNSO Council requires each constituency to nominate one person to
represent the GNSO Council on the President's working group to deal with the
WIPO ll recommendations.

The Council unanimously approved the motion.

Decision 2. Each constituency is required to nominate one person to
represent the GNSO Council on the President's working group to deal with the
WIPO ll recommendations.

Item 4. Discussion of Staff Managers report on UDRP

Bruce Tonkin summarized saying that the report was divided into procedural
and substantive issues. The Acting General Counsel of ICANN considered that
most of the substantive issues and some of the procedural issues would
extend beyond ICANN's mission.
Procedural Issues:
01. Should there be improved centralized, searchable access to
administrative panel decisions
02. Should complainant and respondent filings be publicly available
03. Should complainants and respondents be allowed to amend and/or
supplement their filings?
04. Should the provider and panel selection processes be modified to address
concerns about potential conflicts of interest?
05. Should standards for accrediting providers and panelists be promulgated?
06. Should transfers of proceedings between providers be permitted?
07. Should refunds of providers' fees in the event of settlement be
mandatory and standardized?
08. Should the notice requirements be amended?
09. Should the procedure for implementing orders to transfer registrations
be amended?
10.Should administrative panel decisions be subject to internal appellate
review?
Substantive Issues:
11. Should the policy be changed to require registrars to wait until appeal
deadlines expire before taking action in response to court orders?
12. Should the policy be amended with respect to protection for
non-registered marks?
13. Should the policy be amended to provide guidance regarding the
interpretation of "confusing similarity"?
14. Should multiple complaints be allowed concerning the same registration
and registrant?
15. Should the policy address the question of whether "holding" constitutes
"use"?
16. Should "settlement negotiation" communications be excluded as
permissible evidence of bad faith?
17. Should complainants be required to post a bond and/or pay a penalty in
order to deter "reverse domain-name hijacking"?
18. Should the policy expressly include affirmative defenses?
19. Should administrative panel decisions have precedential effect?
20. Should "cancellation" (deletion of the registration ? allowing
subsequent re-registration by anybody) continue to be an available remedy?

Bruce Tonkin supported by Marilyn Cade, proposed that each constituency
prioritize five issues from the total and then the GNSO Council would ask if
they were in ICANN's scope in an answer to Council members who did not agree
with the delimitation considered by ICANN that most of the substantive
issues would extend beyond ICANN's mission and that some of the issues could
be possible changes but in fact were not solicited by anyone.
Bruce Tonkin also proposed that after the elements were identified, there
should be a discussion with ICANN General Counsel as to the scope of the
issues within ICANN's mission.
Thomas Roessler, ALAC Liaison, said that ICANN should certainly not extend
the UDRP to take up complex cases better dealt with in court, but that -- on
the other hand -- it is certainly within ICANN's mission to either cut back
or fix policy where it has already invaded realms better left to courts. On
outreach done by the ALAC, it was felt that there was too little time for
thorough outreach on these complex issues, but that ALAC had some expertise
available on UDRP, and would be interested in continuing to participate in
the discussion.

Bruce Tonkin, seconded by Milton Mueller, proposed:
That the GNSO requests each constituency to review the list of issues
presented in the Staff Manager's report on UDRP and identify the top five
issues from the report that the constituency believes has the highest
priority for policy development.
This should be done by the next GNSO Council meeting on September 25.


The Council unanimously approved the motion.

Decision 3 : Each constituency is requested to review the list of issues
presented in the Staff Manager's report on UDRP and identify the top five
issues from the report that the constituency believes has the highest
priority for policy development. This should be done by the next GNSO
Council meeting on September 25.

Item 5. Update on WHOIS Privacy Steering Group

Bruce Tonkin, acting chair of the WHOIS Privacy Steering Committee, reported
that during the teleconference held on 7/8 August, each member had been
asked to identify five top issues in the Staff Manager's report on WHOIS
privacy issues.

1. Two issues in general received the majority of votes:
5. Are the current requirements that registrars make disclosures to, and
obtain consent by, registrants concerning the uses of collected data
adequate and appropriate? (See RAA §§ 3.7.7.4 to 3.7.7.6.)
10. Are the current means of query-based access appropriate? Should both
web-based access and port-43 access be required? (RAA § 3.3.1.)

2. The chair, requested as outcome of the streering group, that each
constituency should formally review the top five issues and report back
their positions to the GNSO Secretariat so that the issues could be collated
and developed as the terms of reference for one or more task forces.

3. Related to the WHOIS Privacy Steering Committee work, the ICANN
President, Paul Twomey informally chairs a group that coordinates
representatives from GAC, RIRs, IETF to identify what issues raised in the
WHOIS workshop are appropriate for further analysis. The topics discussed
included status of the IETF CRISP work, documenting uses for each data
element collected at the time of registration, possibility of classifying
types of registrants, and different approaches taken by cctld operators.

4. Work is going on in Internet Engineering Task Force on new registry data
access protocol. John Klensin, the IETF liaison on the ICANN Board requested
input from each GNSO constituency on the requirements of this protocol.


5. Alick Wilson recommended, that each constituency review the data that
must be collected by registrars currently, identify which elements should be
mandatory and, in addition, identify for each of these elements the
consequences if the data element was not available.

6. The information gathered is to be shared with the other ICANN Groups.



Item 6. Discussion on council structure
- The ICANN nominating committee appointed 3 members to the GNSO Council in
June 2003
http://www.icann.org/announcements/announcement-16jun03.htm
- the ICANN by-laws require each constituency to appoint 2 representatives
to the GNSO to take up office at the conclusion of the ICANN annual meeting
in 2003
http://www.icann.org/general/bylaws.htm#X
- the ICANN by-laws require a review of the GNSO WITHIN 1 year following the
adoption of the ICANN by-laws (15 Dec 2002)
http://www.icann.org/general/bylaws.htm#IV


Bruce Tonkin summarized saying that the ICANN bylaws provide for the
appointment of two, and no longer three, constituency representatives on the
GNSO council after the ICANN general meeting in 2003. The bylaws further
require a review of the GNSO to be initiated no later than 15 December 2003
and to be completed in time for Board consideration at ICANN's annual
meeting in 2004.
Members of the Council requested a change as stated in the motion below.
Philip Sheppard, one of the originators of the motion, along with Ken
Stubbs, Ellen Shankman and Antonio Harris, stated that the essence of the
motion was a change in timetable, which called for the review first and then
an examination whether the change from 3 to 2 representatives per
constituency was necessary.
Philip Sheppard accepted the motion as amended by Jeff Neuman to Council:

Proposed language by Marilyn Cade
2. To perform a review of the GNSO council in or around June 2004, WHICH
SHOULD INCLUDE AMONG OTHER ASPECTS OF THE REVIEW CRITERIA, A RECOMMENDATION
REGARDING NUMBER OF REPRESENTATIVES PER CONSTITUENCY.

was amended by Jeff Neuman to read:
2. To perform a review of the GNSO council in or around June 2004 which
should include among other aspects of the review criteria, an analysis of
the efficacy of having three representatives from each constituency on the
GNSO Council.

Amadeu Abril l Abril, stated that he would not vote on the resolution as he
had been a Board member at the time of the Reform and had voted for 2
representatives.
Milton Mueller supported two representatives and said that with possible new
constituencies being added in the future, three representatives would make
the structure unwieldy.
Marilyn Cade supported maintaining 3 representatives and an assessment from
within the Council rather than an outside review process.
Antonio Harris supported 3 representatives to lessen the work load of
representatives and to ensure geographical diversity
Bruce Tonkin, from an engineering point of view, found advantages in
assessing the impact after one year, of the first change made by the three
representatives from the nominating committee.

Philip Sheppard proposed the motion, as amended by Jeff Neuman:

Whereas, the Names Council resolution of 1st August 2002 called for "three
representatives per Constituency on the GNSO Council".

Whereas, ICANN core value 2.4 is: - "Seeking and supporting broad, informed
participation reflecting the functional, geographic, and cultural diversity
of the Internet at all levels of policy development and decision-making".

Whereas, ICANN core value 2.7 is: - "Employing open and transparent policy
development mechanisms that (i) promote well-informed decisions based on
expert advice, and (ii) ensure that those entities most affected can assist
in the policy development process."

Whereas, by-law article XX.5.8 states: "In the absence of further action on
the topic by the New Board, each of the GNSO constituencies shall select two
representatives to the GNSO Council.." "..no later than 1 October 2003."

The GNSO council resolves that:

Three representatives per Constituency is consistent with ICANN core value
2.4 on geographic and cultural diversity within the constituency as the
majority of ICANN regions are represented. . Three representatives per
Constituency is consistent with ICANN core value 2.7 on well-informed
decision making. Experience has shown that three representatives improves
the constituencies ability to share the workload of a council member, to be
able to participate in task forces of the council, and to more effectively
communicate with multiple regions.

And therefore the GNSO Council requests the Board to make two changes in its
review timetable:

1. To change the transition article to allow three representatives per
constituency on the GNSO Council until the end of the ICANN annual meeting
2004;

2. To perform a review of the GNSO council in or around June 2004 which
should include among other aspects of the review criteria, an analysis of
the efficacy of having three representatives from each constituency on the
GNSO Council.

The Council approved the motion by a vote:
- 21 in favour( proxy votes for Tony Holmes, Lynda Roesch, Ellen Shankman)
- 1 Against (Milton Mueller)
- 4 Abstentions (Amadeu Abril lAbril, Alick Wilson, Demi Getschko, proxy
vote carried by Milton Mueller for Chun Eung Hwi)

During the teleconference the following message was received from Chun Eung
Hwi and only read after the teleconference.
GNSO Secretariat


I clearly support a resolution which make sure to have three representatives
per constituency. If I could not be on the call, I will give my proxy to
Milton Mueller.


Decision 4:
- Schedule a joint teleconference with ICANN Board
- Formally submit the motion as a request for an amendment to the Bylaws:
And therefore the GNSO Council requests the Board to make two changes in its
review timetable:
1. To change the transition article to allow three representatives per
constituency on the GNSO Council until the end of the ICANN annual meeting
2004;
2. To perform a review of the GNSO council in or around June 2004 which
should include among other aspects of the review criteria, an analysis of
the efficacy of having three representatives from each constituency on the
GNSO Council.
- GNSO Chair, Bruce Tonkin to liaise with ICANN President, Paul Twomey on
joint ICANN Board teleconference on the topic

Philip Sheppard leaves the call, hands proxy to Grant Forsyth



Item 7: Budget committee report
Bruce Tonkin stated that the items to be discussed were:
- the current state of the budget
- the transition costs of the GNSO website from AFNIC to ICANN management

Roger Cochetti, GNSO Budget committee chair, joins call.

Roger Cochetti reminded Council that the GNSO budget for 2003 was for six
months as ICANN planned to cover the costs for the GNSO after July. The
Constituency dues assessments were based on 6 months spending.
On June 30, 2003, the Budget committee met, and by the end of June there
were no arrangements in place to cover the costs of FISAT Inc. the
Secretariat's firm, and AFNIC, the website operator. The budget committee
agreed to cover the costs for FISAT Inc. and AFNIC for the month of July if
these were not met by ICANN.
With routine spending the current balance amounts to approximately $26
700.00..
The original plan after July was to close off the books and the balance of
funds would go to the GNSO for administrative expenses.

Budget Committee recommendations on larger issues:
Closing out old account - constituency debts over years. Constituency debt
was never forgiven so no constituency ever officially subsidized another
constituency. Council was never supportive of debt forgiveness.
The budget committee recommends a compromise between debt forgiveness and
permanent carrying debts on the ICANN Books
Once all the expenses for June and July are fully paid, the DNSO/GNSO books
would be closed and a new account established for administrative
miscellaneous expenses.
The new account would be funded by the balance from the old to the new
account. The new account would be handled by another form of administration.
The debt would not be officially forgiven but would be irrelevant and the
books closed.

Bruce Tonkin, seconded by Greg Ruth, proposed:
1. When all payments had been made the DNSO/GNSO account should be closed.
2. With the closure of the account, the Council budget committee would be
disbanded
3. Balance of funds transferred to new GNSO administration miscellaneous
account.
4. Procedure be established for management of the new account.

The Council members unanimously approved the motion


Bruce Tonkin summarized the DNSO/GNSO website transition saying that the
expectations were for ICANN to take over the management of the DNSO/GNSO
website by June, 2003. The GNSO secretariat notified the GNSO chair that the
end of June timetable would not be feasible. Bruce Tonkin spoke to Paul
Twomey in Montreal and suggested that the current provider, AFNIC continue
services till the end of the transition in July, 2003.
The GNSO Secretariat was instructed to verbally speak to the director of
AFNIC and verbally received the assurance that the services would continue
until the end of the transition period. Bruce Tonkin has since spoken to the
ICANN President who confirmed that the expense had not been budgeted for by
ICANN and ICANN did not formally engage the French provider during July.

Bruce Tonkin, seconded by Ken Stubbs, proposed the following recommendation:
That Council authorize the additional $1980 expense incurred by AFNIC for
the transition of the DNSO/GNSO website to ICANN administration.
The Council members unanimously approved the motion

Decision 5: That Council authorize the additional $1980 expense incurred by
AFNIC.

Bruce Tonkin, seconded by Amadeu Abril l Abril, on behalf of the GNSO
Council proposed a motion of thanks to Roger Cochetti for his efforts as
budget committee chair in the first half of the year, and for chairing the
committee for two years on a voluntary basis.

The Council members unanimously approved the motion

Item 8: Any Other Business

Bruce Tonkin stated that Jeff Neuman had raised a problem relating to new
gTLDs
Bruce Tonkin mentioned that it was a software problem that required
upgrading and education of the public which should be undertaken as soon as
possible. It was suggested that ICANN send out an advisory note and that the
Internet Engineering Task Force, (IETF) should also be asked to send out an
advisory note as well.
Bruce Tonkin proposed to finalize the document and use all possible council
contacts to propagate the message

Jeff Neuman proposed;
- Forming a group to do outreach as soon as possible.
- That each constituency send one representative to the group.
- To coordinate with the Security committee and the GNSO Council


Bruce Tonkin declared GNSO teleconference closed, and thanked everybody for
attending.

The meeting ended: 16:10 CET, 14:10 UTC, 00:10, 15 August, Melbourne.
Next GNSO Council teleconference: Thursday September 25, 2003 at 12:00 UTC
see:http://www.gnso.icann.org/calendar/