[council] GNSO Council drfat minutes 6 February 2006

[GNSO.SECRETARIAT@GNSO.ICANN.ORG]

[To: council[at]gnso.icann.org]

Dear Council members,

Please find the draft GNSO Council teleconference minutes of 6 February 
2006.

Please let me know if ther are  changes you would like made.

Thank you very much.
Kind regards,
Glen

6 February 2006

Proposed agenda and related documents

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 - proxy to Tony Harris/Greg Ruth if necessary
Thomas Keller- Registrars
Ross Rader - Registrars - proxy Bruce Tonkin if necessary
Bruce Tonkin - Registrars
Ken Stubbs - gTLD registries
June Seo - gTLD registries - proxy to Ken Stubbs
Cary Karp - gTLD registries
Lucy Nichols - Intellectual Property Interests C - absent - apologies - 
proxy to Kiyoshi Tsuru/Ute Decker
Ute Decker - Intellectual Property Interests C - proxy to Kiyoshi Tsuru 
if necessary
Kiyoshi Tsuru - Intellectual Property Interests C.
Robin Gross - NCUC.
Norbert Klein - NCUC. - absent
Mawaki Chango - NCUC
Sophia Bekele - Nominating Committee appointee
Maureen Cubberley - Nominating Committee appointee
Avri Doria - Nominating Committee appointee - proxy to Robin Gross if 
necessary

19 Council Members

ICANN Staff
John Jeffrey - General Counsel
Kurt Pritz - Vice President, Business Operations
Olof Nordling - Manager, Policy Development Coordination
Maria Farrell - ICANN GNSO Policy Support Officer
Liz Williams - Senior Policy Counselor - absent - apologies
Glen de Saint Géry - GNSO Secretariat


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

Michael Palage - ICANN Board member
Quorum present at 19:08 UTC.

MP3 Recording

Bruce Tonkin chaired this teleconference.

Approval of agenda

Marilyn Cade requested a discussion on the draft comment to the ICANN 
Board under item 7, Any Other Business.

Item 1: Approval of minutes
- GNSO Council teleconference minutes 17 January 2006

The approval of the minutes deferred to next Council meeting.

Bruce Tonkin asked John Jeffrey to provide some advice, on how the 
Council should manage Statements of Interest, related to the purpose of 
the council in comparison with the purpose of the ICANN board, and to 
elaborate on the role of councilors and voting circumstances.
The ICANN Board's policy, required declaring certain interests as well 
as disclosing
financial interests on a certain vote while the council advocated 
positions on behalf of their constituencies.
John Jeffrey applauded the council for examining the issue and believed 
that the council should develop its own policy. Councilors have specific 
interests and promote the interests of their constituencies which is 
different to the Board which acts on behalf of the organization, not for 
specific interests.

Maureen Cubberley, referred to CIRA board's conflict of interest policy 
based on a set of principles, and suggested that the Council adopt a 
similar framework. The basic idea was that everybody would be required 
to openly disclose a potential, real or perceived conflict before the 
board or council dealt with
any issues specific to it. The onus was on individuals to immediately 
declare an issue, rather than make a one time or annual declaration. 
Furthermore, if councillors became aware of conflicting interests on the 
part of another council members they would be responsible for announcing 
the potential conflicts.

John Jeffrey commented that the state of the art of conflicts in the 
American corporate world had changed dramatically with the Sarbane-Oxley 
rules and additional transparency requirements for public boards. Some 
of the requirements had been transmitted to non- profit organisations 
such as ICANN. The standards had shifted in what might be declared as an 
interest, to what might relate to future interests and possible 
interests relating to relationships that have been created or not yet 
formalized at the time of the issue or the vote. State of the art of 
conflicts required the contemporaneous disclosure of interest as opposed 
to an annual statement which may or may not be up to date at the point 
of discussion. Council should carefully consider such issues in 
establishing a policy. The ICANN Board's Conflicts Committee created a 
questionnaire, providing detailed information on how to set out 
conflicts and bridge cultural or other issues relating to conflicts. 
Conflicts are convoluted and complicated for lawyers and even for those 
specialized in the area.

Cary Karp asked how the distinction was perceived between a councillor 
advocating a constituency interest and speaking more broadly about 
issues before the Council, but not necessarily specifically relating to 
the constituency represented.

John Jeffrey responded that personal interests, distinct to the 
constituency, were worth pointing out and would be relevant for the 
ICANN Board to consider in examining Council's vote. An explanation of 
how an interest might conflict with an issue or a particular vote would 
be relevant to the Council whether it were constituency based or not . 
The process should be as transparent as possible and if interests would 
impact or would have the potential to impact a vote or discussion they 
should be clearly stated.

Marilyn Cade suggested working on a set of guidelines as a longer term 
project and having further dialogue with general Counsel on the issue. 
Marilyn noted that there was the tendency to believe mentioning the 
company that employed someone actually described their interest while it 
was not the case.

Sophia Bekele commented that as ICANN was based on a constituency model 
it was difficult to define conflict of interests because they existed in 
the organisation's basic structure. Therefore, a unique approach was 
required to address issues such as transparency and define "transparent".

Item 2: Issues Report on policy issues raised in the proposed .com
agreement
- consider the issues report (due 1 February 2006)
- decide whether to initiate the PDP

Bruce Tonkin inquired whether any councillor had a new conflict on the 
issue, since the statements of interest during the Council meeting in 
Vancouver 2 December 2005, or whether any councillor, who had joined the 
Council since the Vancouver meetings had a particular interest in the topic?

Bruce Tonkin referring to the StaffIssues Report on the dotCOM agreement 
, 1 February 2006 said that a decision had to be made whether to 
initiate a policy development process on the basis of the Issues Report 
or whether further action should be taken.

Marilyn Cade proposed that the Council move ahead with initiating the 
policy development process with the definition of the intent of Council.
Marilyn commented that from previous discussions in Vancouver, the 
conference call on 17 January 2006, constituency and other contributions 
on the proposed dot COM agreement there was a narrowness of 
interpretation in the Issues Report that was not consistent with 
Council's intent . While the Issue Report captured a resume of the 
issues, discussions in Vancouver and the Commercial and Business 
constituency position noted that there were issues embedded in the 
proposed dot COM agreement that had implications for the existing and 
future registry tld agreements which did not appear as the 
interpretation in some parts of the Issues Report. Marilyn further noted 
that Council could always be approached and was willing to clarify its 
intent.

Olof Nordling clarified that Staff, on a short statement and the 
resolution from the Council, were requested to provide an Issues Report 
related to the dotCom proposed agreement, taking into account the 
various views that the constituencies had expressed which narrowed it 
down rather than making it generally applicable to the existing policy 
development process on new tlds which included a chapter on contractual 
conditions.

Ken Stubbs believed that the staff addressed the specific request from 
council, and expressed concern that moving the target may pervert the 
process, developed in part by council members, set out in the ICANN 
bylaws. Ken suggested that clearer guidelines were needed when 
requesting an Issues Report and Council needed to examine the policy 
development process in the future to make it work more effectively. 
There were legal issues involved that impacted far beyond the issues 
report and the gTLD expansion process which were not within the issues 
under discussion.

Philip Sheppard remarked that the essence of the dissonance on the 
issues report seemed to arise because it was solely predicated on the 17 
January 2006 Council resolution and did not factor in Council's intent, 
a direct follow up from the report on 2 December 2005, which explicitly 
mapped out Council's concern and the broader implications of the 
settlement. Therefore, the interest in the issue as a policy development 
process, and not specific to one contract that developed from the 
secondary resolution.

Bruce Tonkin summarizing the discussion, asked the following questions:
Whether General Counsel had only listened to the January 17 2006 mp3 
recording of the Council meeting ?
Whether the proposed issues in Section D of the Issues Report were 
within ICANN's mission and the GNSO responsibilities with respect to 
that mission ?
"Discussion of the Proposed Issues
Registry Agreements Renewal
Should the registry agreements provide that consensus policies may not 
affect certain terms in the agreement, Should ICANN registry agreements 
prescribe or limit the prices for registry services,
Are ICANN fees defined in registry agreements subject to policy discussion,
Should the uses of traffic data available to registry as a consequence 
of registry operation be restricted,
Should registry agreements require the specific investment levels in the 
areas of development and infrastructure "

John Jeffrey commented that the issues in section d were not evaluated 
with the scope of ICANN' s mission and the GNSO responsibilities in 
mind, so it should be taken under advisement. The Staff faced the 
problem that what Council requested on 17 January 2006 did not mention 
wider scope. General Counsel listened to the mp3 recording of the GNSO 
Council meeting on January 17, 2006 to determine whether it was possible 
to elicit a broader meaning. Its scope indicated that it was focused on 
the .com registry agreement which formed the base of the analysis. John 
commented that it was difficult to go back to the December 2, 2005 
resolution that he had previously he listened to, but had not been 
considered in forming this opinion, and try to imply what the council 
meant by January 17, 2006. The report attempted to identify the issues 
Council commented on regarding the constituency statements but not 
relating to a specific agreement. The policy development process 
guidelines specify that staff should not find options for the solutions.

Olof Nordling commented that Staff tried to extract general information 
with a view to informing the new TLD policy development process in 
developing consensus policy applicable to broader contractual conditions 
for TLDs.

Bruce Tonkin mentioned that as an option to move forward and referred to 
the 4th item in the terms of reference of the new gTLD PDP initiated in 
December 2005 concerning contractual conditions. It was Council's 
expectation that the conditions applied to all gTLDS and perhaps a 
clarification should be issued stating that the outcome of the policy 
development process would be consensus policy that applied to all gTLDs.
Bruce Tonkin noted further that the Terms of Reference for new gTLDs had 
been put out for comment and the Council agreed to them so they were not 
to change.

Grant Forsyth proposed an alternative solution. In the ICANN bylaws, 
annex A, describing the policy development process, Council could 
proceed with a policy development process, even though General Counsel's 
opinion considered it out of scope, with a 66% vote in favour. Thus 
Grant Forsyth proposed that Council vote to start a policy development 
process based on the Staff Issues Report .
John Jeffrey commented that council needed to understand whether, by the 
motion, they wanted to move forward with the review of the .com proposed 
registry agreement. If that were the case, the issues report accepted, 
the Staff's view that deemed it out of scope overridden, would Council 
then be saying that the issue of reviewing the single proposed dotCOM 
agreement was appropriate and was that Council's intention? The language 
in Council’s resolution was clear " that the Council solicit an issues a 
report related to the .com proposed agreement in relation to the various 
views that have been expressed by the constituencies." It did not say an 
"issues report relating to the various issues that have been raised by 
the constituencies as part of the .com proposed agreement review". It 
was not the same thing, Council was authorising a policy development 
process to review the .com proposed agreement if it went forward.
John Jeffrey went on to say that the resolution itself called on the 
.com agreement, it did not mention that it applied to broader issues. It 
was suggested that it would be more appropriate for Council to re frame 
the issue appropriately and send it back for a second issues report.

This suggestion raised the time it would involve as the ICANN board was 
moving ahead with .dotCOM proposed agreement and the window needed to be 
used immediately.

Maureen Cubberley supported moving ahead with a policy development 
process not specific to the proposed dotCOM agreement but covering cover 
new and existing gTLD agreement and questioned whether there were more 
than the 6 issues in Section D, Discussion of Proposed Issues, mentioned 
in the Staff Issue Report on pages 5, 6 and 7.

Bruce Tonkin summarised and commented that Council members needed to 
consider the legal advice heard . John Jeffrey had pointed out that the 
Issues Report was produced in response to the wording of the January 17 
2006 meeting. Marilyn Cade and Grant Forsyth had recommended adjusting 
motion before Council to include broader issues.

Grant Forsyth, seconded by Marilyn Cade proposed the motion:
Council resolves to initiate a Policy Development Process in line with 
it's 17 January 2006 request for an issues report the intent of which 
was to address the broader policy issues raised."

The motion carried with a supermajority of votes of council members 
present.

Vote: 19 votes in favour, Marilyn Cade, Philip Sheppard, Grant Forsyth, 
(CBUC) Ute Decker, Kiyoshi Tsuru, (IPC) Tony Holmes, Tony Harris, Greg 
Ruth, (ISPCPC) Robin Gross (NCUC), Bruce Tonkin (2), Ross Rader (2), Tom 
Keller (2)(Registrars constituency), Maureen Cubberley, Sophia Bekele, 
Avri Doria (Nominating committee appointees), (18 votes)

6 votes against, Cary Karp (2), Ken Stubbs (2), June Seo (2) (gTLD 
registries constituency)
1 abstention Mawaki Chango (NCUC)

In addition, Kiyoshi Tsuru voted a proxy in favour for Lucy Nichols 
(IPC) who was absent.
1 person was not on the call Norbert Klein (NCUC)

June Seo verified his vote:

I hereby verify that I voted "No" on the motion below.

Just to clarify my intentions for the proxy statement I made during the 
initial voting procedure, I think I should have made statements in 
advance on why I wanted to do it earlier than my proxy statement. As I 
mentioned during the call, I am in the Council to represent my 
constituency's position, not my personal one. The Articles of Operations 
of the gTLD Constituency also require me to represent the views of the 
Constituency. I do not believe there are any conflicts of interests for 
me to vote in this motion, but I wanted to avoid any probable 
misperceptions of conflicts of interests by giving my proxy to Ken.

Decision 1: Council resolves to initiate a Policy Development Process in 
line with it's 17 January 2006 request for an issues report the intent 
of which was to address the broader policy issues raised."


Item 3: Initial Report on new gTLDs
- consider constituency statements and public comments (due 31 January
2006)
- discuss content of Initial Report (due on 15 February 2006)

Olof Nordling reported that not all constituencies had provided their 
statement.

Item 4: Next meeting - 21 February 2006
- Consider holding a two day physical meeting around 21 February 2006 in
Washington, DC to advance the work on policy issues in items 2 and 3
above

Bruce Tonkin stated that given the community pressure to move ahead 
quickly with policy work on new gTLDs, a face-to-face committee meeting 
was proposed in Washington DC. in mid February.

Bruce Tonkin, seconded by Philip Sheppard proposed a procedural motion
To hold a GNSO Council teleconference on 16 February 2006 and to hold a 
physical meeting of GNSO Council committee where constituencies could 
send one or more representatives round about 24/25 February 2006 in 
Washington DC.

A procedural motion was passed by the GNSO Council by roll call vote
22 votes in favour.
Ute Decker, Kiyoshi Tsuru with proxy for Lucy Nichols, and Greg Ruth did 
not vote as they had dropped off the call, and Norbert Klein was not 
present on the call from the beginning.

Decision 2: A procedural motion was passed by the GNSO Council
To hold a GNSO Council teleconference on 16 February 2006 and to hold a 
physical meeting of GNSO Council committee where constituencies could 
send one or more representatives round about 24/25 February 2006 in 
Washington DC.

Bruce Tonkin clarified that the teleconference on 16 February would 
address the Terms of Reference for the new policy development process on 
" Council resolves to initiate a Policy Development Process in line with 
it's 17 January 2006 request for an issues report the intent of which 
was to address the broader policy issues raised."

Item 5: Statements of Interest - deferred

Item 6: Discussion of latest IAB draft on IDNs - deferred to a specific 
teleconference

Item 7 Any Other Business
Bruce Tonkin referred to Marilyn Cade's posting and proposed to contact 
Dr. Vint Cerf and to ascertain the best way for the GNSO Council to 
provide advice to The ICANN Board.

Bruce Tonkin declared the GNSO meeting closed and thanked everybody for 
participating.

The meeting ended: 21:40 UTC.

Next GNSO Council teleconference 16 February 2006 at 19:00 UTC
see: Calendar

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