[council] Revised draft minutes of the GNSO Council teleconference 20 July, 2006

[GNSO.SECRETARIAT@GNSO.ICANN.ORG]

[council[at]gnso.icann.org]

Dear Council Members,

Please find the revised draft minutes of the GNSO Council teleconference 
held on 20 July 2006.

In "Item 3: Vote on tabled WHOIS motion from Marrakech"
The following paragraph has been removed:

Mawaki commented "I am not sure yet what getting who voted in support
of formulation one, to state their reasons why they supported
formulation 1 will achieve, but I am happy to try it and see what we
learn."

Thank you,
Kind regards,
Glen
.......................................................................
20 July 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 - absent - apologies
Greg Ruth - ISCPC
Antonio Harris - ISCPC - absent - apologies
Tony Holmes - ISCPC
Thomas Keller- Registrars
Ross Rader - Registrars
Bruce Tonkin - Registrars
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
Kiyoshi Tsuru - Intellectual Property Interests C - absent - apologies
Robin Gross - NCUC.
Norbert Klein - NCUC. - absent - apologies
Mawaki Chango - NCUC
Sophia Bekele - Nominating Committee appointee - absent
Maureen Cubberley - Nominating Committee appointee - absent - apologies
Avri Doria - Nominating Committee appointee

14 Council Members

ICANN Staff
Denise Michel - Vice President, Policy Development
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Glen de Saint Géry - GNSO Secretariat

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

Quorum present at 12:07 UTC.

MP3 Recording

Bruce Tonkin chaired this meeting

Approval of the agenda

Marilyn Cade requested two topics under Any Other Business:
1. Council input to the ICANN strategic plan
2. Council input to the program committee for the ICANN meetings in Sao 
Paulo

The Secretariat asked for approval of the GNSO Council minutes of 18 May 
2006 and 28 June 2006 to be added to the agenda.

Item 1: Update any statements of interest

No updates noted

Item 2: Approval of the GNSO Council minutes of 18 May 2006 and 28 June 
2006.

The minutes of the GNSO Council minutes of 28 June 2006 were deferred to 
the next Council meeting on 3 August 2006.

Philip Sheppard moved for the adoption of the GNSO Council minutes of 18 
May 2006.

The adoption of the GNSO Council minutes of 18 May 2006 was unanimously 
approved.

Decision 1: The GNSO Council minutes of 18 May 2006 adopted

Item 3: Vote on tabled WHOIS motion from Marrakech

Bruce Tonkin reminded Council that the motion in response to the 
extensive community and Government input on the definition of the 
purpose of WHOIS, based on the discussions at the Marrakech meeting, and 
seconded by Tony Holmes, had undergone further discussion on the GNSO 
council mailing list.

Bruce Tonkin proposed withdrawing the motion on the table from the 
Marrakech meeting and replacing it with two separate motions:
- one relating to the WHOIS service
- one relating to the data that is collected by registrars.

Motion One on the WHOIS service

"The GNSO Council notes that the WHOIS definition approved by the GNSO 
Council on 18 April 06, as a working definition to allow the WHOIS task 
force to proceed with its work, is related to the service that provides 
public access to some of the data collected by registrars. It is not a 
definition of the purpose of the data collected by the registrars in the 
course of registering a domain name for their customers.

In response to the extensive community and Government input on the 
definition of the purpose of WHOIS, the GNSO Council agrees to undertake 
the following steps:

(1) Each Council member that voted in favour of the definition may 
provide a brief explanation of the reason for supporting the resolution 
and their understanding of its meaning.

(2) The ICANN staff will provide a summary of the other interpretations 
of the definition that have been expressed during the public comment 
period, and subsequently in correspondence from the public and Governments.

(3) The GNSO Council requests that the WHOIS task force continue with 
their work as specified in the terms of reference taking into account 
the recent input that has been provided.

(4) The GNSO Council will take the Final Report (as specified in clause 
9(c) of the GNSO PDP process) from the WHOIS task force after the task 
force finishes its work on all the terms of reference, engage in further 
dialogue with the Advisory Committees (including the GAC, SSAC and 
ALAC), and consider improving the wording of the WHOIS service 
definition so that it is broadly understandable.

Note that the WHOIS Task force will produce a Task Force Report (as 
specified in clause 7(e) of the GNSO PDP process) later in 2006 that 
addresses all terms of reference. This report will be subject to a 
further public comment process, and the output of this public comment 
will be incorporated into the Final Report.

Note that the previous clause (3) in the motion posted on 13 July 2006 
that related to the purposes for collecting data is now the subject of a 
separate motion (see below)."

Two friendly amendments were proposed:
(a) by Cary Karp amending the language in (1) to read "Any Council 
member who.. "
(b) by Bret Fausett, the ALAC Liaison to the GNSO Council, as ALAC had 
participated in the work of the WHOIS task Force, for the motion to 
include the option for an Advisory Committee that supports the current 
definition to also make a statement for the record through the 
appropriate liaison to the GNSO Council.

The amendments were accepted and the motion proposed by Bruce Tonkin was 
seconded by Marilyn Cade.

Discussion on the motion clarified the following areas:

- The assertion that the voted definition of the WHOIS purpose is that 
of the WHOIS service is consistent with the WHOIS Task Force Terms of 
Reference that request the definition of the purpose of WHOIS service.

- The definition refers to data that is made public, but some of the 
data collected to display via WHOIS , may be collected for other purposes.

- There was uncertainty in the community why the council voted in favour 
of formulation 1, and while it was not possible for the Council as whole 
to give a response, the intent of the present motion was to give 
individual council members the opportunity to explain why they supported 
the motion.

Mawaki Chango commented that after speaking against the initial motion 
proposed in Marrakesh, he was comfortable with the latest change that 
did not request, but gave the opportunity to the council members to 
explain their vote, if they so wished. Mawaki noted, however, that the 
new version of the numbered paragraph (1) of the Motion One may 
introduce a non desirable imbalance with the numbered paragraph (2), 
assuming that they were coupled in the initial design of the motion, so 
that those who voted for the current definition should explain their 
rationale while the staff would compile and present the rationale of 
those who opposed that definition. In the current version of the motion, 
only those of the relevant Council members who are willing to do so may 
provide an explanation of their vote for the current definition. With 
the likelihood that there may only be a few, the request to the staff to 
compile the opposing views may become less relevant.

- Calling on an elected constituency representative to account 
individually for their vote retroactively caused some concern as some 
constituencies direct how their representatives should vote on a 
particular issue. A reference was made to the ICANN Board vote on the 
dotCOM agreement where members stated their reasons for their vote. 
Clarification was given that Board members had a standard procedure 
where after a formal vote, any Board member could voluntarily go on 
record and comment on their vote. It was generally accepted that at any 
time a Council member would have the opportunity to explain a vote via 
the public GNSO Council mailing list. It was also noted that several 
Council members may choose to make a joint statement.

Mawaki Chango commented that without prejudice of how the Board 
conducted its consultations and deliberations prior to its final 
decisions, the Council had had lengthy debates and exchange of arguments 
before the WHOIS definition vote, all of which was documented on a 
public mailing list. In fact, most of the letters the Council had 
received were not asking for an explanation of the vote, but contending 
that the Council voted for the wrong definition, and therefore, should 
change its vote. Mawaki considered any further explanation to respond to 
that contention as useless for that very reason, which he believed was 
related to what the Council Chair, Bruce Tonkin, called "the end 
objectives of those that support the two formulations," in his email to 
the Council list, dated 20 July 2006: 'regarding Powerpoint presentation 
in the GNSO/GAC workshop on Monday 26 June 2006.

"It seems to me that the debate is not really about the formulations - 
which are really almost the same purely from a language point of view, 
but the concern is about the end objectives of those that support the 
two formulations. I think there is far more variation in the end 
objectives of the various constituencies, than there is
variation in the two formulations. [...] Rather than waste further time 
on debating the formulations, it seems to me personally that we probably 
need to move on and discuss a possible reference implementation e.g the 
operational point of contact (oPOC) that may not be quite as bad or good 
as some had hoped, but it might actually improve the effectiveness of 
the WHOIS service for us all." (BRUCE TONKIN: CHAIR, GNSO COUNCIL)

- The motion's intent was to direct the WHOIS task force to continue its 
work, while taking additional input into consideration.

- The timeline mentioned in the motion referred to the' task force 
report' in the policy development process in the ICANN bylaws, which is 
the report that deals with the complete terms of reference and is 
published for public comment before the Final Report is produced. The 
expectation is that the task force report would be ready for public 
input at the Sao Paulo meetings, but this could be subject to change 
depending on the progress of the WHOIS task force.
.
The Government Advisory Committee should be made aware of the timeline 
and their assistance sought to accommodate the process.

Philip Sheppard and Ross Rader both supported the motion and called the 
question:

Bruce Tonkin seconded by Marilyn Cade proposed a motion on the WHOIS 
service:

"The GNSO Council notes that the WHOIS definition approved by the GNSO 
Council on 18 April 06, as a working definition to allow the WHOIS task 
force to proceed with its work, is related to the service that provides 
public access to some of the data collected by registrars. It is not a 
definition of the purpose of the data collected by the registrars in the 
course of registering a domain name for their customers.

In response to the extensive community and Government input on the 
definition of the purpose of WHOIS, the GNSO Council agrees to undertake 
the following steps:

(1) Any Council member who voted in favour of the definition may provide 
a brief explanation of the reason for supporting the resolution and 
their understanding of its meaning. An Advisory Committee that supports 
the current definition may also make a statement for the record through 
the appropriate liaison to the GNSO Council.

(2) The ICANN staff will provide a summary of the other interpretations 
of the definition that have been expressed during the public comment 
period, and subsequently in correspondence from the public and Governments.

(3) The GNSO Council requests that the WHOIS task force continue with 
their work as specified in the terms of reference taking into account 
the recent input that has been provided.

(4) The GNSO Council will take the Final Report (as specified in clause 
9(c) of the GNSO PDP process) from the WHOIS task force after the task 
force finishes its work on all the terms of reference, engage in further 
dialogue with the Advisory Committees (including the GAC, SSAC and 
ALAC), and consider improving the wording of the WHOIS service 
definition so that it is broadly understandable.

Note that the WHOIS Task force will produce a Task Force Report (as 
specified in clause 7(e) of the GNSO PDP process) later in 2006 that 
addresses all terms of reference. This report will be subject to a 
further public comment process, and the output of this public comment 
will be incorporated into the Final Report.

Note that the previous clause (3) in the motion posted on 13 July 2006 
that related to the purposes for collecting data is now the subject of a 
separate motion.

The motion passed by voice vote.

20 votes in favour:
Philip Sheppard, Marilyn Cade, Tony Holmes, Greg Ruth, Mawaki Chango, 
Robin Gross, Avri Doria, Ute Decker, Ken Stubbs, Cary Karp, June Seo, 
Bruce Tonkin, Ross Rader, Tom Keller.

Council members absent who did not vote: Alistair Dixon, Tony Harris, 
Lucy Nichols, Kiyoshi Tsuru, Norbert Klein, Sophia Bekele, Maureen 
Cubberley.

Decision 2: "The GNSO Council notes that the WHOIS definition approved 
by the GNSO Council on 18 April 06, as a working definition to allow the 
WHOIS task force to proceed with its work, is related to the service 
that provides public access to some of the data collected by registrars. 
It is not a definition of the purpose of the data collected by the 
registrars in the course of registering a domain name for their customers.

In response to the extensive community and Government input on the 
definition of the purpose of WHOIS, the GNSO Council agrees to undertake 
the following steps:

(1) Any Council member who voted in favour of the definition may provide 
a brief explanation of the reason for supporting the resolution and 
their understanding of its meaning. An Advisory Committee that supports 
the current definition may also make a statement for the record through 
the appropriate liaison to the GNSO Council.

(2) The ICANN staff will provide a summary of the other interpretations 
of the definition that have been expressed during the public comment 
period, and subsequently in correspondence from the public and Governments.

(3) The GNSO Council requests that the WHOIS task force continue with 
their work as specified in the terms of reference taking into account 
the recent input that has been provided.

(4) The GNSO Council will take the Final Report (as specified in clause 
9(c) of the GNSO PDP process) from the WHOIS task force after the task 
force finishes its work on all the terms of reference, engage in further 
dialogue with the Advisory Committees (including the GAC, SSAC and 
ALAC), and consider improving the wording of the WHOIS service 
definition so that it is broadly understandable.

Note that the WHOIS Task force will produce a Task Force Report (as 
specified in clause 7(e) of the GNSO PDP process) later in 2006 that 
addresses all terms of reference. This report will be subject to a 
further public comment process, and the output of this public comment 
will be incorporated into the Final Report.

Note that the previous clause (3) in the motion posted on 13 July 2006 
that related to the purposes for collecting data is now the subject of a 
separate motion.

Bruce Tonkin introduced the second motion and stated that it related to 
the data that is collected by registrars and what happened with that 
data collected. It was intended as a parallel activity to the WHOIS task 
force work.

The definition of "Personal data" in clause 1.6 of the Registrar 
Accreditation Agreement: Personal data refers to any identified or 
identifiable natural person. It was noted that even a work address for a 
natural person could be considered as personal data.

Bruce Tonkin, seconded by Marilyn Cade proposed the motion:

"The GNSO Council notes that, consistent with generally accepted privacy 
principles, Registrars are required under clause 3.7.7.4 of the 
Registrar Accreditation Agreement to provide notice to each new or 
renewed Registered Name Holder stating:

(i) The purposes for which any Personal Data collected from the 
applicant are intended;

(ii) The intended recipients or categories of recipients of the data 
(including the Registry Operator and others who will receive the data 
from Registry Operator);

(iii) Which data are obligatory and which data, if any, are voluntary;
and

(iv) How the Registered Name Holder or data subject can access and, if 
necessary, rectify the data held about them.

To further understand the range of purposes for which data is intended, 
the GNSO proposes the following steps:

(1) The ICANN staff will review a representative sample of registrar 
agreements with Registered Name Holders, taking into account the issues 
of geographical diversity and rule of law variances, to identify some of 
the purposes for which registrars collect Personal Data in the course of 
registering a domain name for their customers.

(2) The ICANN staff will review a representative sample of cctld 
registry or cctld registrar agreements with registrants, taking into 
account the issues of geographical diversity and rule of law variances, 
to identify some of the purposes for which these organisations collect 
Personal Data from registrants.

(3) The ICANN staff will summarise the current material that has 
resulted from WHOIS discussions since 2002 that document the current 
uses and abuses of the Personal Data that is currently made public 
through the WHOIS service.

(4) Supported by the material produced in steps (1), (2) and (3) above, 
the Council will undertake a dialogue with the ICANN Advisory 
Committee's, such as the GAC, SSAC and ALAC, regarding the purposes for 
collecting Personal Data, and discuss whether any policy development is 
required in this area consistent with ICANN's mission and core values.

The dialogue should seek to examine and understand consumer protection, 
privacy/data protection and law enforcement perspectives."

The motion carried with a vote by acclamation.
There were no abstentions and no votes against

Decision 3: "The GNSO Council notes that, consistent with generally 
accepted privacy principles, Registrars are required under clause 
3.7.7.4 of the Registrar Accreditation Agreement to provide notice to 
each new or renewed Registered Name Holder stating:

(i) The purposes for which any Personal Data collected from the 
applicant are intended;

(ii) The intended recipients or categories of recipients of the data 
(including the Registry Operator and others who will receive the data 
from Registry Operator);

(iii) Which data are obligatory and which data, if any, are voluntary;
and

(iv) How the Registered Name Holder or data subject can access and, if 
necessary, rectify the data held about them.

To further understand the range of purposes for which data is intended, 
the GNSO proposes the following steps:

(1) The ICANN staff will review a representative sample of registrar 
agreements with Registered Name Holders, taking into account the issues 
of geographical diversity and rule of law variances, to identify some of 
the purposes for which registrars collect Personal Data in the course of 
registering a domain name for their customers.

(2) The ICANN staff will review a representative sample of cctld 
registry or cctld registrar agreements with registrants, taking into 
account the issues of geographical diversity and rule of law variances, 
to identify some of the purposes for which these organisations collect 
Personal Data from registrants.

(3) The ICANN staff will summarise the current material that has 
resulted from WHOIS discussions since 2002 that document the current 
uses and abuses of the Personal Data that is currently made public 
through the WHOIS service.

(4) Supported by the material produced in steps (1), (2) and (3) above, 
the Council will undertake a dialogue with the ICANN Advisory 
Committee's, such as the GAC, SSAC and ALAC, regarding the purposes for 
collecting Personal Data, and discuss whether any policy development is 
required in this area consistent with ICANN's mission and core values.

The dialogue should seek to examine and understand consumer protection, 
privacy/data protection and law enforcement perspectives."

Item 4: Vote to initiate IDN-gTLD PDP [PDP-Jul06]
- updated IDN issues report with proposed terms of reference to be 
provided by Olof Nordling by 13 July 06

Bruce Tonkin stated that there had been requests for more time to work 
on the IDN Issues Report and the proposed terms of reference before 
initiating a policy development process.

Olof Nordling reported that the focus of the IDN Issues Report, since 
the Marrakech meeting, had been on the proposed terms of reference in 
preparation for approval at the current Council meeting.

It was suggested that staff should work towards a substantive report 
representative of all workshops, historical materials on the topic and 
taking into account any input from councillors .

The Constituencies are encouraged to reflect on what impact IDNs have on 
the current policy work on new gTLDs and whether the current policy 
assumptions are correct, because IDN based gTLDs are a subcategory of 
new gTLDs.

The Council, in consultation with the constituencies should progress 
with parallel work on refining the terms of reference .
A new draft of the terms of reference will be available by 27 July, 7 
days before the next Council meeting on 3 August 2006 where a vote will 
be taken to initiate a policy development process.

Item 5: Update on PDP-Dec05 - new gTLDs
- confirm planning for face-to-face meeting

Dr Liz Williams reported that the latest version of the New gTLDs 
report, which reflects the inputs from the GNSO public forum in 
Marrakech and other commentary from the 15 June meeting was being 
reviewed by Dan Halloran, deputy General Counsel.
Council members should work closely with their constituencies to consult 
on the revised report which will be released in the week of 24 July, and 
bring the feed back to the face to face meeting in Amsterdam.

Appropriate questions are being developed for a public comment period 
and Council members are encouraged to provide input.

A face to face meeting for the committee for new gTLDs, open to 
interested observers, has been scheduled for 29, 30 and 31 August 2006, 
in Amsterdam.

The Initial Report will be sent to the other Supporting Organisation, 
the GAC and the ALAC for review and comments.

The Final report is targeted for presenting to the Board at the ICANN 
meetings in Sao Paulo.

Dr. Liz Williams wished her thanks to be recorded to all those who had 
contributed and been closely involved in the process.

Item 6: Update on PDP-Feb06 - Contractual conditions for existing gTLDs

Dr Liz Willaims reported that the three actions items from the Marrakech 
meeting were underway:

Release an updated version of report
Propose a draft schedule
Propose a series of materials

The updated version of the Report on PDP-Feb06 - Contractual conditions 
for existing gTLDs which includes the input from the Marrakech meeting 
is being reviewed by Dan Halloran, deputy General Counsel, and will be 
released shortly.

In the interim period, a request has been made for recommendations with 
respect to written materials and related experts.
It is expected that at the end of September the impact of the expert 
materials on the preliminary report could be evaluated.
An opportunity for a discussion or briefing from experts in this area 
required more work from the task force to identify where the specific 
input from specific people might fall.

Marilyn Cade was not in agreement delaying this step and considered that 
access to advice and dialogue with anti-trust and competition experts 
earlier in the process, would be more advantageous.

Dr. Liz Williams undertook to consult with the task force chair, Maureen 
Cubberley, on the issue of experts and the date for the next task force 
meeting.

Item 7: Any other business:

7.1 Input to the ICANN Strategic plan
Marilyn Cade called for a group of volunteers, comprising of councillors 
and constituency members who would be interested in collecting input in 
those areas of the ICANN strategic plan that impacted the Council to 
contact her off line.

7.2 ICANN meetings in Sao Paulo
Council members should provide input for requirements during the Sao 
Paulo meetings.
Bruce Tonkin suggested that two topics for discussion with the 
Government Advisory Committee would be new gTLDs and WHOIS.

The Secretariat will enquire what visa arrangements ICANN is making for 
Brazil.

Bruce Tonkin formally closed the meeting and thanked everybody for 
participating.

The meeting ended: 13:59 UTC

     *

       Next GNSO Council teleconference 3 August at 12:00 UTC
       see: Calendar


-- 
Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org