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Minutes
Special Meeting of
the Board
6 June 2000
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INTERNET
CORPORATION FOR ASSIGNED NAMES AND NUMBERS
MINUTES OF SPECIAL MEETING
June 6, 2000
A meeting of the Board of Directors of
the Internet Corporation for Assigned Names and Numbers ("ICANN")
was held by teleconference on June 6, 2000. The following Directors
of the Corporation were present by telephone: Esther Dyson, Chairman,
Jean-François Abramatic, Amadeu Abril i Abril, Vint Cerf,
Jonathan Cohen, Phil Davidson, Ken Fockler, Hans Kraaijenbrink,
Michael Roberts, Linda S. Wilson, and Pindar Wong. Directors
Geraldine Capdeboscq, Greg Crew, Jun Murai, and Alejandro Pisanty
joined the teleconference while it was in progress. Also present
on the teleconference were Louis Touton, Vice-President, Secretary,
and General Counsel of the Corporation; Andrew McLaughlin, Chief
Financial Officer of the Corporation; and Joe Sims of Jones,
Day, Reavis & Pogue.
The meeting was called to order by Esther
Dyson at 5:07 am U.S. Pacific Daylight Time.
RECOMMENDATION
OF THE RECONSIDERATION COMMITTEE
Mr. McLaughlin reported that the Reconsideration
Committee has adopted three recommendations, with respect
to requests 99-1, 00-4, and 00-5, that are ready for Board consideration.
Early in the Board's discussion of these matters, directors Geraldine
Capdeboscq, Greg Crew, and Jun Murai joined the teleconference.
The Committee has adopted the following
recommendation on Request for Reconsideration 99-1:
[RC 99-1] On June
25, 1999, the Reconsideration Committee received a request for
reconsideration from Eric Brunner and Robert Gough relating to
ICANN's recognition of the Intellectual Property Constituency
(IPC) of the Domain Name Supporting Organization. The request
complains of ICANN's decision not to recognize a distinct DNSO
constituency for "indigenous intellectual property"
interests. The request raises questions about the Intellectual
Property Constituency (IPC)'s membership criteria and their application;
the openness and transparency of its procedures; the process
by which the IPC was recognized; and whether any bylaws "or
other guidelines" were violated by the parties involved.
The request asks for three specific remedies:
"(1) modification of the provisional
recognition to extend to our group, in effect, partitioning a
single constituency in recognition that no compromise between
corporate and indigenous groups was achieved, and that the exclusion
of either is unnecessary, and actionable.
"(2) modification of subsequent language
concerning WIPO's work product to reflect its inadequacy, consistent
with our formal response to WIPO RFC3, on record at WIPO's web
site.
"(3) modification of the VI-B(3)(b)(7)
constituency allocation of seats on the Names Council, transferring
one seat from the group provisionally recognized at Berlin (corporate)
to our (indigneous) group."
The crux of the request appears to be a
feeling that the indigenous intellectual property group led by
Messrs. Brunner and Gough was not treated fairly by the other
IPC organizers, and that a separate constituency with its own
Names Council representative should be created. [Request 2 appears
to have nothing to do with the recognition of the IPC, reflecting
instead a substantive disagreement with the recommendations of
the World Intellectual Property Organization relating to domain
names.]
In response to the request, the Reconsideration
Committee asked a series of questions to the IPC, which are posted
at http://www.icann.org/reconsideration/ipc-letter-27dec99.htm.
Mr. Steve Metalitz, then president of the IPC, responded to the
questions; his response is posted at http://www.icann.org/reconsideration/metalitz-response-10jan00.htm.
Mr. Brunner followed with a response of his own, posted at http://www.icann.org/reconsideration/brunner-response-13jan00.htm.
Over the past 11 months, the ICANN staff
and the Reconsideration Committee (in its past and present incarnations)
have scrutinized the structure and By-laws of the IPC, both in
theory and in practice. See http://ipc.songbird.com/IPC_Bylaws_dec_15_correct.htm.
The Committee has observed the operation of the IPC over an extended
period of time, and concludes that there is no basis on which
to alter or overturn its recognition by the Board. The IPC is
open to new members (including Messrs. Brunner and Gough and
any organizations represented by them); it has applied its membership
criteria evenhandedly; it is reasonably open and transparent;
and it was recognized on the basis of a general community consensus
(which obviously did not include Messrs. Brunner and Gough, but
was nevertheless an evident consensus).
The Committee notes that all current members
of the IPC have been required to complete and submit applications
for membership, something it appears Messrs. Brunner and Gough
have elected not to do. As Mr. Metalitz notes in his response,
Messrs. Brunner and Gough have been invited to apply for membership
in the constituency. Through Mr. Metalitz, the IPC has stated
publicly its commitment to treat any such applications fairly
and impartially, consistent with its stated policies. As members
of the IPC, Messrs. Brunner and Gough would be able to take part
in its activities and deliberations on an equal basis with any
other members, and to advocate for indigenous intellectual property
interests within the IPC and the DNSO. The Reconsideration Committee
sincerely hopes they will do so. In the meantime, the Committee
sees no reason to revoke or alter the Board's recognition of
the IPC.
In sum, the Reconsideration Committee recommends
that the Board take no action in response to RR 99-1.
With respect to Request for Reconsideration
No. 00-4, the Committee adopted the following recommendation:
[RC 00-4] On May 6,
2000, the Reconsideration Committee received a request for reconsideration
from Bret Fausett, complaining that no minutes for the April
6, 2000 Special Meeting of the Board had been posted as of the
time of his request. Mr. Fausett asks the Reconsideration Committee
to take two steps:
"(a) prompt posting of detailed minutes
of April 6, 2000 Special Meeting; and
"(b) formulation of internal ICANN
policy to ensure future compliance with Article III, Section
2 of the Bylaws."
In response to point (a), the Committee
notes that the minutes for that meeting were posted on March
[sic, May] 9, approximately twelve days late. Accordingly, this
request has already been met.
In response to point (b), the Committee
agrees that ICANN should have an improved procedure for informing
the community about actions taken during its telephone meetings,
while nevertheless allowing all 19 members of the Board sufficient
time to review and edit the draft minutes of the Secretary to
ensure accuracy before they are publicly posted. The Committee
believes that this can be accomplished by amending the Bylaws
to require that any resolutions passed by the Board be posted
within five (5) business days, while requiring that full minutes
be posted no later than the day after the date on which the Board
formally approves them. In that way, ICANN can provide rapid
notice of actual actions, without having to wait for the entire
Board to complete its work on the full minutes, which record
discussions and housekeeping matters.
Article III, Section 2 of the ICANN Bylaws
currently states:
"ACCESS TO INFORMATION
"All minutes of meetings of the Board,
the At Large Council, Supporting Organizations (and any councils
thereof) and Committees shall be approved promptly by the originating
body. No later than twenty-one (21) days after each meeting,
draft minutes shall be made publicly available on a publicly-accessible
Internet World Wide Web site maintained by the Corporation (the
"Web Site"); provided, however, that any minutes relating
to personnel or employment matters, legal matters (to the extent
the Board determines is necessary or appropriate to protect the
interests of the Corporation), matters that the Corporation is
prohibited by law or contract from disclosing publicly and other
matters that the Board determines, by a three-quarters (3/4)
vote of Directors voting, are not appropriate for public distribution
shall not be included in the minutes made publicly available.
For any matters that the Board determines not to disclose, the
Board shall describe in generic terms in the relevant minutes
the reason for such nondisclosure."
The Reconsideration Committee proposes
that Article III, Section 2 be amended to read as follows:
"ACCESS TO INFORMATION
"(A) All minutes of meetings of the
Board, Supporting Organizations (and any councils thereof) and
Committees shall be approved promptly by the originating body.
"(B) No later than five (5) days after
each meeting, any actions taken by the Board shall be made publicly
available in a preliminary report on a publicly-accessible Internet
World Wide Web site maintained by the Corporation (the "Web
Site"); provided, however, that any actions relating to
personnel or employment matters, legal matters (to the extent
the Board determines is necessary or appropriate to protect the
interests of the Corporation), matters that the Corporation is
prohibited by law or contract from disclosing publicly and other
matters that the Board determines, by a three-quarters (3/4)
vote of Directors voting, are not appropriate for public distribution
shall not be included in the preliminary report made publicly
available. For any matters that the Board determines not to disclose,
the Board shall describe in generic terms in the relevant preliminary
report the reason for such nondisclosure.
"(C) No later than the day after the
date on which they are formally approved by the Board, the minutes
shall be made publicly available on the Web Site; provided, however,
that any minutes relating to personnel or employment matters,
legal matters (to the extent the Board determines is necessary
or appropriate to protect the interests of the Corporation),
matters that the Corporation is prohibited by law or contract
from disclosing publicly and other matters that the Board determines,
by a three-quarters (3/4) vote of Directors voting, are not appropriate
for public distribution shall not be included in the minutes
made publicly available. For any matters that the Board determines
not to disclose, the Board shall describe in generic terms in
the relevant minutes the reason for such nondisclosure."
In sum, in response to RR 00-4, the Reconsideration
Committee will recommend to the Board that it consider adoption
of the foregoing amendment to the Bylaws.
Finally, with respect to Request for Reconsideration
No. 00-5, the Committee adopted the following recommendation:
[RC 00-5] The Reconsideration
Committee received on 11 May, 2000, a request for reconsideration
from James Trefil, submitted on behalf of Adam Corelli. Mr. Correlli
is the registrant of a domain name which was the subject of a
recent administrative proceeding pursuant to ICANN's Uniform
Domain Name Dispute Resolution Policy (UDRP). The proceeding
was handled by the National Arbitration Forum, which posted the
resulting administrative decision on April 12, 2000 (NAF File
No. FA0094235). The decision has been posted by the National
Arbitration Forum at http://www.arbforum.com/domains/decisions/94235.htm.
Links to the decision have been posted on the ICANN site on the
various lists of UDRP proceedings and decisions, such as the
List of Proceedings Arranged by Commencement Date; the List of
Proceedings Arranged by Proceeding Number; and the List of Proceedings
Arranged by Domain Name.
Unhappy with the outcome of the administrative
decision, Mr. Corelli exercised his right under Paragraph 4(k)
of the Uniform Dispute Resolution Policy to challenge the result
by filing a lawsuit in U.S. federal court (Corelli v. T.M. Pacific
Co., United States District Court for the Eastern District of
Virginia, Civ. Action No. 00-701-A, filed April 27, 2000). Quite
understandably, Mr. Corelli is not pleased with the decision's
determination of bad faith in his registration and use of the
domain name.
In his reconsideration request, Mr. Corelli
asks that the ICANN Board reconsider the decision to maintain
a link to the administrative decision on the ICANN website. [At
one point, Mr. Corelli states that ICANN continues to "post"
the NAF decision "on its web site". The Committee notes
that this characterization is mistaken, as the administrative
decisions are posted by the dispute resolution providers themselves,
and simply linked from the ICANN site. Likewise, Mr. Corelli
mistakenly characterizes the decision as being "ICA[N]N's";
rather, the decision has been rendered by the National Arbitration
Forum, an approved dispute resolution provider.]
Specifically, Mr. Corelli asks "that
the link to the text of the opinion be removed from ICANN's web
site, and that the status of the dispute be shown as 'judicial
determination pending.'" Moreover, "[i]f removing the
link to the opinion is contrary to an existing ICANN policy,
Mr. Corelli requests that such policy be reconsidered and modified."
The Committee notes that the Uniform Dispute
Resolution Policy requires dispute resolution providers to publish
"all decisions under this Policy . . . in full over the
Internet," except when the Panel determines to redact portions:
"4.j. Notification and Publication.
The Provider shall notify us of any decision made by an Administrative
Panel with respect to a domain name you have registered with
us. All decisions under this Policy will be published in full
over the Internet, except when an Administrative Panel determines
in an exceptional case to redact portions of its decision."
Likewise, the Rules for the UDRP provide:
"16.(b) Except if the Panel determines
otherwise (see Paragraph 4(j) of the Policy), the Provider shall
publish the full decision and the date of its implementation
on a publicly accessible web site. In any event, the portion
of any decision determining a complaint to have been brought
in bad faith (see Paragraph 15(e) of these Rules) shall be published."
This policy was adopted after a lengthy
and open consensus-building process. Many individuals expressed
a strong view that the administrative dispute resolution providers
should be required to operate transparently by posting all of
their decisions on the Internet. The publication of all opinions
allows the broad community of interested and/or affected individuals
to analyze and evaluate the results of decisions, the strength
and validity of the panelists' reasoning, etc. In effect, the
mandatory posting rule permits any individual to form an independent
judgment about how well the dispute resolution providers and
panelists are doing their appointed tasks. Such transparency
and openness is essential: the UDRP is in its infancy, and public
scrutiny and input will be necessary if ICANN and the dispute
resolution providers are to properly evaluate and make improvements
to the policy.
While the Policy and Rules apply only to
registrars and dispute resolution providers, the ICANN staff
has provided regularly updated web pages that index administrative
proceedings from all approved dispute resolution providers, including
information known to ICANN (the existence of the dispute, along
with a link to or notation of the resolution). The ICANN tables
do not include notations relating to subsequent litigation, because
the ICANN staff is simply too small and too overstretched to
monitor and verify the hundreds of legal disputes that will surely
ensue. The Reconsideration Committee finds the ICANN staff indices
to be a valuable service for the benefit of interested and affected
parties, and believes that ICANN should continue to provide the
listed information in full.
Moreover, the Committee observes that the
administration decision which Mr. Corelli objects to is merely
an administrative decision, setting forth the panelist's view
of the facts, along with her opinions. While Mr. Corelli is certainly
correct that his U.S. federal lawsuit may eventually render the
decision moot, the suit does not alter the fact that an administrative
proceeding was filed and that it produced a decision. The principles
of openness and transparency that underlie the UDRP's publication
rule argue strongly in favor of continuing the publication rule.
Accordingly, the Reconsideration Committee
recommends that the Board reject Mr. Corelli's requests in RR
00-5. The Committee urges Messrs. Corelli and Trefil to advocate
their views on the publication rule to the broader community
during ICANN's review of the UDRP later this year.
The Board discussed the three recommendations
of the Reconsideration Committee. In the discussion of Request
00-5, the question was raised whether ICANN should undertake
to report on its web site the status of court proceedings related
to UDRP proceedings. Doing so would involve reviewing and making
assessments about the validity and effect of various documents
filed in courts throughout the world and would likely lead to
disputes among the litigating parties as to the accuracy of ICANN's
posted summaries. It was noted that Request 00-5 was not asking
that such a procedure be established. In the discussion, the
ICANN staff was informally advised to place a notice on the pertinent
web pages alerting readers of the possibility of related court
proceedings that are not reflected on the web pages, and it has
done so.
The following motion was duly made, seconded,
and adopted by the Board:
RESOLVED [00.34] that
the Reconsideration Committee's Recommendations RC 99-1, 00-4,
and 00-5 are adopted for the reasons stated in those recommendations.
With respect to RC 00-4, the Board directs the staff to post
the proposed bylaw changes for public review and comment in advance
of the Board's meeting in Yokohama.
The vote was unanimous, except Mr. Cohen
noted his abstention with respect to Request No. 99-1.
DISBURSEMENT AND CHECK SIGNING AUTHORITY
Mr. Roberts noted that the Board's resolutions
authorizing the signing of checks on behalf of the Corporation
did not reflect various changes in personnel and should be updated.
A discussion ensued regarding the procedures for authorization
and payment of expenses. It was generally agreed that the Audit
Committee was responsible for reviewing the adequacy of the
Corporation's internal controls and should do so in connection
with the upcoming end of the Corporation's fiscal year. During
this discussion, Alejandro Pisanty joined the call.
The following motion was duly made, seconded,
and unanimously adopted by the Board:
RESOLVED [00.35] that
the Vice President and General Counsel, Louis Touton, and the
Chief Financial Officer, Andrew McLaughlin, and each one of them,
may authorize disbursements of the Corporation's funds, and sign
checks of the Corporation, in amounts of $10,000 or less.
FURTHER RESOLVED [00.36]
that the President of the Corporation, Michael Roberts, may authorize
disbursements of the Corporation's funds, and sign checks of
the Corporation, in amounts of $50,000 or less.
FURTHER RESOLVED [00.37]
that the President of the Corporation, Michael Roberts, may authorize
disbursements of the Corporation's funds, and sign checks of
the Corporation, in amounts exceeding $50,000, when so authorized
by action of the Board or the Executive Committee.
FURTHER RESOLVED [00.38]
that the Vice President and General Counsel, Louis Touton, may
authorize disbursements of the Corporation's funds, and sign
checks, in amounts not exceeding $20,000, to the order of the
Darwin Group, Inc., that fulfill the terms of the professional
services contract between the Corporation and the Darwin Group
for the services of Michael Roberts.
FURTHER RESOLVED [00.39]
that the authorizations to disburse funds and to sign checks
as set forth in Board resolutions 98.12,
99.7
and 99.59
shall cease to be effective as of the adoption of this resolution.
FISCAL
YEAR 2000-2001 BUDGET
Mr. Roberts presented the Board with a
proposed budget. He summarized the proposed budget, which was
developed through consultation of the budget group and posted
for public comment on May 4, 2000. He also summarized the
comments that were received on the public comment forum devoted
to the proposed budget. During this discussion, Mr. Crew left
the teleconference.
It was noted that ICANN's establishment
of stable funding relationships with some segments of the community
(particularly ccTLD managers) has not been finalized, so that
timely collection of a portion of ICANN's revenue in the adopted
FY 1999-2000 budget, as well as in the proposed FY 2000-2001
budget, is uncertain.
The following motion was duly made, seconded,
and unanimously adopted by the Board:
Whereas, the bylaws
of the Corporation require that the President shall prepare
and submit to the Board a proposed annual budget of the Corporation
for the next fiscal year.
Whereas, the President and other members
of the staff have followed an open and consultative process in
developing the budget, including a budget
presentation
and discussion in the public meeting in Cairo in March, on
several occasions with the registry/registrar budget group composed
of representatives of the domain name and address registries
and the gTLD name registrars, and through posting of the proposed
budget for public comment.
Whereas, the President has submitted to
the Board a proposed budget prepared through that consultative
process for FY00-01, commencing July 1, 2000, which proposed
budget is ordered attached to the minutes of this meeting (the
"Proposed
Budget").
Whereas, the Proposed FY00-01 Budget provides
for total revenue of USD $5.024 million, total expenditures of
$4.219 million and total capital equipment purchases and contribution
to working capital and operating reserve of $805,000.
Whereas, the Board has reviewed the Proposed
Budget and has found that its adoption is in the best interest
of the Corporation.
RESOLVED [00.40] that
the Proposed Budget is hereby adopted as the annual budget of
the Corporation for the fiscal year beginning July 1, 2000 (as
adopted, the "Budget").
FURTHER RESOLVED [00.41]
that the President is authorized and directed to implement and
carry out the Budget and is directed to inform the Board of material
variances from the Budget.
FURTHER RESOLVED [00.42]
that the President is directed to present to the Board, at its
Yokohama meeting in July 2000, a report analyzing the fiscal
year-end financial results of the corporation as of June 30,
2000, including any significant variances in anticipated income
and expense, and to make recommendations for any revisions to
the FY00-01 Budget that may be necessary in light of the year-end
results and other matters affecting the budget.
AT-LARGE
SELF-NOMINATION PROCEDURES
Mr. McLaughlin noted that on 19 May the
staff posted
a set of proposed rules for self-nomination of candidates
for At-Large directors and established a public
comment forum on the proposal. He also summarized the comments
received to date. He recommended that the Board give preliminary
approval to a few aspects of the proposal (relating to the timing
of the self-nomination phase, the data elements to be submitted
by candidates for self-nomination, and the posting of candidate
information on the ICANN website) that are necessary to proceed
in an orderly way, but that the comment period on the other aspects
be extended until shortly before the Yokohama meeting, at which
time the Board could consider giving final approval to a complete
set of procedures.
After discussion, the following motion
was duly made, seconded, and unanimously adopted by the Board:
Whereas, the staff posted on 19 May a set
of proposed rules for the self-nomination phase of the At Large
election process;
Whereas, a number of helpful public comments
and constructive criticisms have been posted; and
Whereas, the Board wishes to provide additional
time for public review and comment and to defer final decision
on the rules until its next meeting in Yokohama, while recognizing
the staff's need for sufficient guidance to properly construct
and implement the online interface and database components necessary
to launch the self-nomination phase shortly after the Yokohama
meetings; it is
RESOLVED [00.43] that
the Board generally approves the staff's proposed rules insofar
as they relate to the timing of the self-nomination phase, the
data elements to be submitted by candidates for self-nomination,
and the posting of candidate information on the ICANN website
(Rules 1 - 5);
FURTHER RESOLVED [00.44]
that the period for public review and comment on the proposed
rules (particularly Rules 6-10) is extended until 6 July; and
FURTHER RESOLVED [00.45]
that the deadline for new At Large membership applications for
purposes of participating in this year's At Large election is
tentatively set for 31 July, subject to final ratification in
Yokohama.
UPDATE ON
STATUS QUO AGREEMENTS FOR ccTLDS
Mr. Touton gave a report summarizing progress
toward formulation of documents concerning ICANN's relationships
with ccTLDs. In Cairo, the Government Advisory Committee presented
a proposal
concerning the administration and delegation of ccTLDs. The
Board adopted Resolution
00.13 authorizing the President and staff to work with the
ccTLD managers, Governmental Advisory Committee, and other interested
parties to prepare draft language for contracts, policy statements,
and/or communications, including appropriate funding arrangements,
to be presented to the Board and posted for public comment. Since
that time, various groups of ccTLD managers have been working
on proposals responding to the Government Advisory Committee's
report, but no document having consensus support among ccTLD
managers has emerged. A draft agreement is being prepared by
the staff for possible consideration by the affected parties.
It would not change the present policies that currently apply
to ccTLDs, but would provide the flexibility for changes in policy
to reflect discussions among ccTLD managers, governments, ICANN,
and others. Once a draft is completed, it will be disseminated
to the community for comments.
UPDATE
ON PLANS TO GIVE SPECIFIC DEFINITION TO ICANN'S GEOGRAPHIC REGIONS
Article V, Section 6 of the bylaws provides that the Board should periodically define
ICANN's five Geographic Regions:
As used herein, each of the following shall
be a "Geographic Region": Europe; Asia/Australia/Pacific;
Latin America/Caribbean islands; Africa; North America. The specific
countries included in each Geographic Region shall be determined
by the Board, and this Section shall be reviewed by the Board
from time to time (but at least every three years) to determine
whether any change is appropriate, taking account of the evolution
of the Internet.
In connection with the selection of At-Large
Directors this year, it is important to more precisely define
the allocation of countries to the regions. It was agreed that
the issue should be considered at the Yokohama meeting, and that
the staff should gather community comment beforehand.
UPDATE
ON PLANS TO REVISE BYLAWS RELATING TO AT LARGE MEMBERSHIP
Mr. Touton noted that amendments to the
bylaws are necessary formally to implement the changes to the
At-Large membership program set forth in Resolution
00.18, adopted by the Board at the Cairo meeting. The staff
will post proposed amendments for public comment and the matter
will be considered in Yokohama.
REPORT ON CEO
SEARCH
Mr. Cerf gave a brief report on the activities
of the Executive
Search Committee. The committee, working with Christopher
Mill, is in the process of identifying candidates for a permanent
CEO. The committee will meet in Yokohama to assess progress.
The meeting was adjourned at 6:35 am U.S.
Pacific Daylight Time.
_______________________
Louis Touton
Secretary
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