<!--#set var="bartitle" value="GNSO Council Teleconference Minutes extract"-->
<!--#set var="pagetitle" value="GNSO Council Teleconference Minutes extract"-->
<!--#set var="pagedate" value="18 August 2005"-->
<!--#set var="bgcell" value="#ffffff"-->
<!--#include virtual="/header.shtml"-->
<!--#exec cmd="/usr/bin/perl /etc/gnso/menu.pl 'GNSO Council Teleconference Minutes extract'"-->
<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 & Business Users C. - absent - apologies - proxy to Grant Forsyth/Marilyn Cade <br>
Marilyn Cade - Commercial & Business Users C. <br>
Grant Forsyth - Commercial & 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 "notice and comment on policy actions" and "contract approvals" 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’s policy council and take into account any advice presented by said Council on its own initiative or at the Board’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’s policy council and take into account any advice presented by said Council on its its own initiative or at the Board’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> </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’s transparency principles in Article III, the Board must approve all of ICANN’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 "section d" clarified that <br>
"
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 "public" 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’s policy council and take into account any advice presented by said Council on its its own initiative or at the Board’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>
<p> </p>
<p> </p>
<p> </p>
<p><font face="Arial, Helvetica, sans-serif"> <br>
<br>
</font></p>
<P><font face="Arial, Helvetica, sans-serif">
<!--#include virtual="/footer.shtml"-->
</font></P>