23 Jan 2008

[Formal Minutes are still to be approved by the ICANN Board]

A Special Meeting of the ICANN Board of Directors was held via teleconference 23 January 2008. Chairman Peter Dengate Thrush called the meeting to order at 4.00am Pacific Daylight Time (PDT). The following Directors participated in all or part of the meeting: Harald Alvestrand, Raimundo Beca, Susan Crawford, Vice Chairman Roberto Gaetano, Demi Getschko, Steven Goldstein, Dennis Jennings, Rajasekhar Ramaraj, Njeri Rionge, Rita Rodin, Jean-Jacques Subrenat, Bruce Tonkin, President and CEO Paul Twomey. The following Board Liaisons participated in all or part of the meeting: Steve Crocker, SSAC Liaison; Janis Karklins, GAC Liaison; Thomas Narten, IETF Liaison; Reinhard Scholl, TLG Liaison; Wendy Seltzer, ALAC Liaison; and Suzanne Woolf, RSSAC Liaison. The following Board Member was not present on the call: David Wodelet.

Also, the following ICANN Staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kevin Wilson, Chief Financial Officer; Kurt Pritz, Senior Vice President, Business Operations; Paul Levins, Vice President, Corporate Affairs; Denise Michel, Vice President, Policy; Barbara Roseman, General Operations Manager, IANA; Kim Davies, Manager of Root Zone Services; and, Donna Austin, Manager, Governmental Relations.

1) Approval of Minutes for 18 December 2007

Steven Goldstein moved and Jean-Jacque Subrenat seconded the motion to accept the minutes of the meeting of 18 December 2007.

Resolved (2008.01.01), the minutes of the Board Meeting of 18 December 2007 are approved.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 12-0. Due to technical call issues Rajasekhar Ramaraj and Raimundo Beca were not present for the vote.

2) GNSO Recommendation on Contractual Conditions for Existing gTLDs (PDP-Feb06)

Kurt Pritz indicated that this policy recommendation by the GNSO Council regarding gTLD contractual conditions proposes operational steps to be taken by ICANN, and does not impose new obligations directly on its contracted parties. Staff recommends that the Board adopt the policy recommendations. This PDP arose out of discussions surrounding the .com negotiations. Originally, the PDP intended to address the .com registry agreement. Kurt reported that the General Counsel advised that a PDP on one single contract was not an appropriate subject for a policy development effort by the GNSO according to the bylaws so the focus was changed to undertake an analysis of the terms of all registry agreements. Ten policy recommendations were made as a result of the PDP. Staff supports the recommendations which tend to: follow the new gTLD policy recommendations for base contracts, recommend study by ICANN or the GNSO on certain issues, or recommend maintaining certain terms in existing agreements.

The Chair noted that this discussion is the result of work, which started in January two years ago. He asked if staff were able to detect if there were any problems with the recommendations, bearing in mind that the registry constituency has always been opposed to the terms of reference, and whether there is any aspect the Board that the Board should particularly note. He also asked that if the Board accepts the policy recommendations, if there will be opposition from the gTLD registry constituency.

Denise Michel noted that critical points of opposition from the registry constituency revolved around several issues, which were not supported by a GNSO majority and therefore, not included in the policy recommendations.

The Chair accepted that on this basis, the Board could move ahead. The circumstances that gave rise to controversy were the conduct of negotiations of the .com renewal, but these recommendations do not focus on the negotiations of that contract and are focused on setting the scene for future registry contracts.

Bruce Tonkin advised that, having been on GNSO Council at the time, the GNSO discussions moved away from focusing on current gTLD agreements and recognized that the PDP could not change existing contracts. The PDP evolved into recommendations for new baseline agreements going forward for new gTLDs.

Rita Rodin asked specifically about a concern that the recommendations regarding re-bidding registry contracts upon their expiration, whether the recommendations would implemented to consider re-bidding as contracts came up for renewal.

Bruce Tonkin said that with regard to existing gTLD agreements, some agreements have already been renewed with a renewal presumption in them, for example, .BIZ and .INFO and followed the format of .com and have provisions for renewal in them.

Rita Rodin advised that a registry concern, in seeking funding from investors, is that certain investment is based on the premise of a presumption of renewal and asked if that will continue?

Bruce Tonkin advised that he believed this to be the case.

John Jeffrey advised that the 'presumption of renewal' provisions would be briefed according to the GNSO Council work and the staff prepared implementation plans, and additional information would be provided back to the Board after the additional work was completed.

Rita Rodin noted that it seems that the policy recommendations are intended to cover existing and new agreements going forward but some elements are still being determined. John Jeffrey indicated that the Board was not being asked to vote on imposing consensus policies or changes to existing registry agreements.

Susan Crawford asked whether future Board discussion of the new gTLD policy implementation regarding base contracts would include review of the presumptive renewal aspects of this PDP?

John Jeffrey answered that all aspects of these policy recommendations would be discussed in the context of the new gTLD process and the proposals being drafted for changes to form agreements, which would come to the board during the implementation of the new gTLDs policies. Further, Staff will clarify the implementation plans of the approved GNSO policy recommendations and inform the Board, the GNSO and the broader community of the results.

Dennis Jennings noted that while he considered the text on present limitations to consensus policies to be appropriate and should continue, there is a discussion on domain name tasting and attempts to extend this practice may affect DNS security and stability. He questioned if it is it appropriate to maintain those limitations on consensus policy. He noted that he is raising this to be tabled and discussed at some later point.

Denise Michel advised that the BGC GNSO review working group considered limitation on consensus policy, often known as a 'picket fence,' and proposed to re-examine the issue. The Council view was not to make any changes on those limitations.

Bruce Tonkin moved and Roberto Gaetano seconded to adopt the following resolution:

Whereas, at its meeting on 9 August 2007, the GNSO Council voted by a supermajority in favor of the recommendations set forth in the GNSO's Final Report on Contractual Conditions for Existing gTLDs (PDP Feb-06).

Whereas, the implementation of the GNSO's recommendations would not impose any new obligations directly on gTLD registries or registrars under contract with ICANN, but instead would result in certain operational steps to be taken by ICANN, as identified in the Council Report to the Board on PDP Feb-06 posted on 4 October 2007 <http://gnso.icann.org/issues/gtld-policies/council-report-to-board-PDP-feb-06-04oct07.pdf>.

Resolved (2008.01.02), the Board accepts the GNSO's recommendations on contractual conditions for existing gTLDs, and directs staff to implement the recommendations as outlined in the Council Report to the Board for PDP Feb-06.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

3) Discussion of Ongoing Community Dialogue about IDN ccTLDs and gTLDs

The Chair advised that this item was triggered by a GNSO resolution to send the Board a letter relating to the fast track IDN ccTLD process. A letter had also been received from the ccNSO Chair on the topic. The letters can be viewed at:

http://gnso.icann.org/drafts/repsonse-to-resolution-07-89-20dec07.pdf

http://www.icann.org/correspondence/ccnso-chair-to-icann-board-21jan08.pdf

Denise Michel advised that the ccNSO and GNSO have agreed to meet face-to-face in New Delhi to discuss the GNSO recommendations, and in particular the suggestion of creating a joint working group on the topics of IDN ccTLDs and gTLDs.

The Chair advised that the Board could do nothing and wait for the outcome of the discussions, but could acknowledge receipt of the letter.

Denise Michel advised that the staff recommendation is to acknowledge the letters from GNSO and ccNSO and look forward to developments in New Delhi.

The Chair asked if this approach would satisfy both parties or are they expecting more?

Denise Michel advised that the GNSO request is that Board should create a working group comprising representatives from ccNSO, GNSO, GAC and ALAC and participants from other ICANN bodies as desired. The ccNSO has asked that that action not be taken and that ccNSO and GNSO Councils should discuss this in New Delhi.

Susan Crawford acknowledged that this is obviously a thorny issue and as has been discussed in the past in the context of contractual issues, there is no such thing as a ccTLD IDN. The Board has acknowledged that some want to move forward quickly but there is a problem and a lot of suspicion, and it is not clear, that some would not ask for more than one. My understanding would be a very limited implementation and would be an equivalent to an existing ccTLD, if that's not the case and it is a larger initiative, then the Board needs to understand that. All we've done is approve a working group to consider ISO 3166 equivalents and we see the GNSO erupting. Can we be clear on what the ccTLD expectation is from this process?

Denise Michel advised that the IDNC working group would have an initial report posted in a matter of days, which will be the focus of community discussion at the forthcoming meeting.

Janis Karklins advised that his interpretation of the GNSO concern is not linked to the fast track but linked to a philosophical question of what is an IDN ccTLD in the DNS architecture. The ccNSO has launched a PDP and this question could be answered in that process. It is important to engage in discussion with all constituencies, therefore my suggestion would be apart from acknowledging receipt of the two letters, to encourage them to enter in to dialogue and engage with other constituencies in dialogue and come back to Board for a decision if needed.

Dennis Jennings agreed with Janis, we should do nothing now until the discussions start in New Delhi. However, we should follow up Susan's question about the distinction between the fast track and ccIDNs and the Board should give guidance to the community as to the limited nature of the fast track and what we would consider appropriate.

Dennis Jennings noted that it is a separate topic; it is a fast track for limited purposes and should not be confused with the general question of IDN ccTLDs,

Steve Goldstein advised that all he would vote for is to approve one fast track IDN ccTLD per territory, but only one for each of those and they get to chose which script they want to use, if they want others they have to go through the gTLD process to get it.

The Chair considered this pre-emptive of the topic being discussed.

Janis Karklins agreed the discussion is being pre-emptive, there will be a four hour workshop in New Delhi where the initial report will be discussed and it may be there are no fast track applications at all, there may be a dozen, but let the process go and it will be delivered for consideration by Board in Paris. The Board should be relaxed at this point, to monitor discussion, intervene if feel going in wrong direction and leave the ccNSO and the GAC to come up with decision.

Rita Rodin noted that while not necessarily agreeing with Janis, she does think the fast track was the issue which is why the GNSO asked to add a few more people to the working group, the concern being that the fast track process is going to facilitate a land grab at this juncture. We need to let the working group do its work but more clarification is needed. She is encouraged that the groups will meet in New Delhi but feels the Board should acknowledge receipt of the letter and feels it is very important that the issue has been raised and the Board looks forward to the outcome in New Delhi.

Bruce Tonkin drew the Board's attention to a number of inter-dependencies, namely the IDN fast track process, the new gTLD process, and the ccNSO PDP. The first decision on what is included in the fast track will impact on what is available in the new gTLD round and there is a concern there will be a land grab of space. The concern on the ccNSO side is if the fast track is very limited and a small set of nominated names are identified, the GNSO may go on some land grab. Also need to be careful whatever you do in the first round of gTLDs as this needs to take into account the ccPDP process so it may be necessary to confine some names. There are also differences in the contractual framework between gTLDs and ccTLDs, which create the potential for inequities.

The Chair agreed to acknowledge the letters the question is how much further do we go? Rita and Janis are encouraging them to dialogue at meeting. The Chair advised against running the issues together. The ccPDP can be used to address the question the GNSO is asking, asking in a kind of a way the GNSO is asking, where does this fit. We should let the ccPDP solve that and encourage dialogue in New Delhi, at the same time we want to be careful to send a signal that the fast track will be looked at very carefully but not draw too much attention to possible limits before the process concludes. The Chair suggested that the Board acknowledge the letter and encourage dialogue but not go much further than that at this point. Jean-Jacques Subrenat suggested that the minutes or any response would state that the Board would read the conclusions coming out of that meeting and work on the issues.

The Chair indicated that he did not consider it necessary to have a formal resolution and asked John Jeffrey if he could record the discussion in sufficient detail for the purposes of the Minutes. John Jeffrey advised that it could be noted clearly in the minutes, without any action being taken by the Board.

4) ISC (F-Root Operator)/ICANN Mutual Responsibilities Agreement

Doug Brent advised that this has been an area of work over a long period to establish agreements with root server operators. The ISC and in particular Suzanne Woolf has taken leadership in bringing this to resolution which is the agreement before the Board today for ratification.

Roberto Gaetano asked if there were any other discussions taking place with other root-server operators, and if so, are we trying to get the same agreement?

Doug Brent advised that staff is making those efforts, but are not currently in any advanced stage of negotiation, but it is expected others will sign.

Roberto Gaetano asked if there was any indication that any of the clauses would be unacceptable to other operators?

Doug Brent advised that at this time there is nothing to suggest this is the case, but we may find that this does become the case during other negotiations.

Thomas Narten asked in terms of agreement as whole, is ICANN satisfied with what has been agreed or are there areas for improvement?

Doug Brent advised that this does not cover all the thorny issues we would want to cover with operators, but we think this is a good compromise. It does not cover how would root-server operations would be transferred from one to another or assigned but we believe the signing of this agreement to be a good step forward.

Following on Thomas Narten's remark, Jean-Jacques Subrenat noted that the proposed resolution suggests that the CEO should seek to conclude 'similar' (and not 'identical') agreements, which does provide room for different agreements suited to specific situations.

The Chair considered this to be a positive step for ICANN, and in reflecting on the early ccTLD discussions, trying to get everything into the first agreement is impossible and it is better to take what we can and over time they will become more refined and comprehensive.

Suzanne Woolf noted her conflicts on this issue. She advised that she was happy with the agreement for two reasons: it breaks the log jam, ISC did a lot of soul searching before going forward and the process of negotiation and discussion was very pleasant and decided it would always be nice if it was this easy. The initial draft from ISC was based on extensive discussion over many years about what would be a good starting point and was deliberately undertaken with a view to dealing with something that would not be unacceptable to others.

Paul Twomey advised that in relation to discussions with USG who had been pushing for such agreements, they acknowledged that while not letter perfect, it did cover enough hooks and pointers to satisfy those persons as well.

Harald Alvestrand moved and Dennis Jennings seconded the following resolution.

Whereas, effective root server operations are an essential component in providing a stable and secure, globally interoperable Internet;

Whereas Internet Systems Consortium, ISC, is one of twelve global root server operators and the first to enter into an agreement with ICANN;

Whereas this MRA outlines a structure and description of duties and expectations, dispute resolution, and interchange of technical information between ISC and ICANN;

Whereas formalized expectations between ICANN and root operators will result in a wider understanding of the key operational and stability issues of most concern to the root operator community and the Internet community as a whole;

Whereas this MRA is another important step in coordinating the key entities in providing domain name service, and ensuring that mutual accountabilities are documented and transparent;

It is hereby resolved (2008.01.03) that the ISC/ICANN Mutual Responsibilities Agreement is approved. It is further resolved that ICANN's CEO should seek to conclude similar agreements with other root server operators.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0. The Chair congratulated all of the staff and other parties involved in the negotiations.

5) Proposals to Address Domain Tasting , and

6) Compliance Report on Network Solutions' Domain Reservation Activities

Bruce Tonkin recused himself from the discussion and dropped off the call during the discussion of items 5 & 6 due to potential conflict of interest. Kurt Pritz indicated that tasting is a practice that has grown over the years and that many recent discussions and writings demonstrate that the Board is already well versed on the related issues. Kurt indicated that ICANN has collected some information that a few parties have taken the practice to its logical conclusion, and operate exclusively on this model - deleting as much as 95.5% of names registered within the five-day grace period. Others exercise degrees of restraint. There are a spread percentage of names deleted in the grace period across all registrars that ranges from 0% to 99.5%. ICANN has had many discussions and consultations on this issue. It was proposed that ICANN charged a transaction fee on add-grace deletes in the 2004-2005 budget but there was substantial criticism that such a fee would be de-facto policy making by ICANN staff. Recently the GNSO voted to recommend that staff take action to change its transaction fee to change in for tasting deletes. If ICANN changed transaction fee in this manner, most think practice would cease. The vote represents Supporting Organization policy support for alternative budget.

The staff paper discusses three options for addressing tasting, to eliminate the practice. These are three options that have been discussed recently in many recent writings describing the tasting practice and its effects. As discussed in the GNSO report and elsewhere, there are basically three options that could be used to attack domain tasting: (1) ICANN could revise its registrar-level transaction fee (the current rate is US$0.20, which is subject to raise as the contracted rate is US$0.25) to cover all new registrations and discontinue the exemption for "tasted" domains, (2) registries could impose a "restocking" fee for disproportionate domain deletions, or (3) ICANN could establish a new "policy" effectively deleting the add grace period policy in the registry agreements.

Revising the registrar fees would be discussed with the community and specifically with registrars whose approval would be sought in accordance with the 2/3 requirements relating to approval of the ICANN budget by the registrars. Imposing a registry level restocking fee such as .org has implemented in its registry, is problematic because pricing and imposition of fees for registry services is considered as outside that “picket fence” that describes constraints on consensus policy. A consensus or temporary policy to delete the registry agreement contractual provision that specifies the add-grace period might not be an effective means of eliminating the practice. Tasting could still be offered as a short-term pricing or introductory price discounts even if the five-day period did not exist.

Susan Crawford noted that she had been consulting with parties involved with and concerned with tasting and watching the Board discussion and the points of view discussed. In light of this, she circulated a resolution for the Board to consider that suggested that the Board take an emergency step to impose a fee on names deleted during the add grace period (AGP). This could be accomplished in the regular budget cycle. In order to expedite implementation, Susan proposed the Board adopt a resolution today as an emergency policy focused on the impact on security and stability and relating it to the recent service introduced by Network Solutions.

With regard to the proposed resolution, Jean-Jacques Subrenat thought it was not absolutely necessary to include the reference to 'security and stability'. Citing his understanding of the urgency for the Board to take such a motion, he considered however that these practices under scrutiny do not in a significant way endanger security and stability, he suggested ICANN drop the reference to security and stability.

Paul Twomey suggested that the resolution should encourage further exploration of the issue rather than reach a conclusion because we need to give at least 21 days public notice on such a proposition, and the ICANN Board should not agree that the fee be imposed until after public comment. Dennis Jennings and Steve Goldstein suggested additional proposed changes to the language.

John Jeffrey advised that any attempt to invoke consensus policy would need to comply with bylaws. Resolutions to address tasting by invoking the consensus (or temporary) policy provisions of ICANN's registry or registrar agreements would have to comply with both the terms of those agreements, and with ICANN's Bylaws. Bylaws Article III, Section 6, for example, requires that "With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall […] provide public notice on the Website explaining what policies are being considered for adoption and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board …" <http://www.icann.org/general/bylaws.htm#III-6>.

Susan Crawford agreed with changes to her proposed resolution by Jean-Jacques, Dennis Jennings, Paul Twomey and John Jeffrey.

Janis Karklins advised that during the last GAC call there was a request to engage with the Board on domain name tasting in New Delhi, and he will be requesting a staff briefing for the GAC as well.

The Chair asked in the context of the problem the registry and registrar agreements, and under the bylaws, if the Board is able to do this and make such a resolution.

Susan Crawford considered that the Board adopts lots of resolutions like this, the “whereas” clauses identify scope, issues and what ICANN is encouraging through a budget process that we think will address tasting. She indicated that ICANN is not adopting a policy, but are directing staff to take actions in compliance with the existing budget process.

The Chair considered the next general issue is the reference to the issue of the NSI practice, and asked whether it is clear that that practice will be addressed by this approach?

Kurt Pritz advised that the NSI practice is enabled by the AGP: putting the name on hold for 5 days. If NSI is required to pay a transaction fee then it is general opinion that the practice would end. John Jeffrey confirmed that in conversations with NSI, a representative had indicated that the service had already been revised since it was initiated, and also that if ICANN were to impose a fee for the AGP than they would likely roll back the service.

The Chair asked for further developments on the NSI situation.

Kurt Pritz advised that ICANN wrote to NSI to investigate the practice and determine if the practice is in violation of the RAA. NSI had already amended the practice prior to that writing to bring it into compliance with the RAA. These were essentially nuances to the initial version of the practices – in essence, it has the same effect. There may be one more change to the practice to bring it into RAA compliance.

Steve Crocker advised that SSAC had spent a lot of time thinking about this and he made two observations. The AGP is the connective tissue between NSI's goals in the new service and their ability to offer the service, but it is not the right issue. Information supplied by the user when checking name availability disadvantages the user in an unexpected way and when exposed a registrant would not want the registrar to operate in this way. Raising the price on five-day registrations is a pragmatic approach but it does not get to the core value underlying this. We may feel good about the fee but it does not get to the core of what's going on. We should not casually drive by and address a serious underlying issue with the fee. Regarding other ways to eliminate tasting, removing the AGP as a registry contract requirement would not necessarily be effective because a registry might choose to offer some fee discount period for whatever reason that would effectively replicate the AGP. Therefore, although ICANN might remove the AGP as a requirement, it is not assured that this would remove this as an option. If the transaction fee is imposed on add-grace deletes ICANN could subsidize costs resulting from typos or fraud.

Steve continued that the dialogue we're having has been about imposing a fee during the AGP, another option is we simply stop defining AGP: taking away any recognition of it as a separate type of transaction. Everything gets simpler if we remove the AGP as having any special meaning or purpose. The NSI situation is distinct from other uses of the AGP and depends on the AGP for efficiency but that is not the only example of a registrar or entity taking advantage of information supplied by customer. Steve's perspective on AGP is that we should stop subsidizing the practice and the other issues will be resolved.

The Chair asked Steve his opinion of Susan's resolution. Steve Crocker responded that he is sympathetic to adopting the resolution, and also agreed with Bruce Tonkin that it would be very difficult to declare an emergency policy since AGP has been actively practiced for three years. He also pointed out that what NSI is doing is qualitatively different from what others have been doing.

The Chair considered that it might be, that tasters are prepared to pay the transaction fee, and, if that is the case, we may consider a resolution that addresses the issue of front running.

Harald Alvestrand noted that there are two different bad results that have been discussed here: front running or capturing names from registrants, and free registration using AGP. Action taken to fix one of them is a good thing, but we should not forget that both issues should be addressed.

Roberto Gaetano reflected on Susan's motion and the 3 alternatives. He is not enthusiastic about ICANN imposing a fee on a registration of domain names even if deleted; however, it appears to be the best or only possible option. For the reasons stated earlier, Roberto would not support the other two options. ICANN may step outside its authority with requiring registries to impose fees and eliminating the AGP in the registry agreements may not be effective. Taking an ineffective action may be perceived badly. I believe we need to put in place some actions and messages to explain these actions to anticipate misperceptions. We need make it clear that we take this financial measure not in a relationship to a financial perspective of profit or loss but simply as the best way in order to cure problem for certain large parts of the Internet community. We need a strong statement of the negative aspects that the current practice entails and consequences of letting this continue without attempting to stop it. We will see more creative solutions than NSI's which may have effects worse than what we are trying to cure. I support the option that follows a proposal in the budget and in favor of Susan's motion but we need to enrich our action by communicating clearly to the community why we are doing this and to anticipate the negative and positive reactions. This communication should take place when we present the budget and make it obvious to the community that we are not imposing additional fees on registrants, that this would not result in an increase in revenue to ICANN.

The Chair requested clean wording of a reworked resolution.

Susan Crawford moved and Steve Goldstein seconded the adoption of the following resolution:

Whereas, the current version of all gTLD registry contracts provides for a

five-calendar-day Add Grace period (AGP) following the initial registration

of a domain during which a domain may be deleted and the sponsoring

Registrar will be credited for the amount of the registration fee (see,

e.g.,

http://www.icann.org/tlds/agreements/verisign/appendix-07-01mar06.htm);



Whereas, the AGP was originally created to allow domain names that had been

accidentally registered to be cancelled;



Whereas, the practice of "domain tasting," by which names are registered and

then deleted during the AGP, has grown at a very great rate since 2005, with

tens of millions of domains registered and deleted each month;



Whereas, it is apparent that the AGP is being used for purposes for which it

was not intended;



Whereas, abuse of the AGP is, in the opinion of the majority of respondents

whose statements were collected by the GNSO Ad Hoc Group on Domain Name

Tasting (4 October 2007 report), producing disadvantages in the form of

consumer confusion and potential fraud that outweigh the benefits of the

AGP;



Whereas, the GNSO Council on 31 October 2007 resolved to launch a PDP on

Domain Tasting and to encourage staff to apply ICANN's fee collections to

names registered and subsequently de-registered during the AGP;



Whereas, it is the Board's view that abuses of the AGP should speedily be

halted, while the positive benefits of the AGP to consumers should be

retained;



Whereas, the positive benefits of the AGP may include, among other things,

avoiding fraud and monitoring, testing and development of registrars'

provisioning, production and/or merchant gateway systems;



Whereas, the Board believes that the withdrawal of ICANN's waiver of ICANN's

non-refundable transaction fee to the deletion of names within the AGP will

substantially end the practice of abusing the AGP;



THEREFORE, the Board resolves (2008.01.04) to encourage ICANN's budgetary process to

include fees for all domains added, including domains added during the AGP,

and encourages community discussion involved in developing the ICANN budget,

subject to both Board approval and registrar approval of this fee.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 13-0. Bruce Tonkin abstained from voting on this item.

7) Memoranda of Understanding with the Institute for Information Security Issues (IISI) at the Lomonosov Moscow State University and with Russian Association of Networks and Services (RANS)

Theresa Swinehart advised that the proposed MOUs are part of ICANN's continuing effort to have non-binding partnering arrangements with private in intergovernmental parties to conduct outreach to governments and local Internet communities. Other similar MOUs signed to date include CITEL and UNESQA, and there are others being considered.

Jean-Jacques Subrenat noted that it might be more appropriate to start chapter two of the RANS MOU with the word “mechanism” rather than “mechanics”.

Steve Goldstein moved and Jean-Jacques Subrenat seconded the adoption of the following resolution:

Whereas, ICANN has developed a collaborative program with private and intergovernmental parties to conduct outreach to governments and local Internet communities.

Whereas, ICANN staff has engaged with respective organizations both globally and regionally.

Whereas, organizations have expressed an interest to enter into non-binding MoUs or cooperative agreements with ICANN to highlight cooperation.

Resolved (2008.01.05), ICANN's CEO is authorized to enter into the MoUs with the Institute for Information Security Issues (IISI) to the Lomonosov Moscow State University and the Russian Association of Networks and Services, (RANS.)

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

Steven Goldstein thanked Veni Markovski for his hard work on this and Janis Karklins advised that the GAC is expecting representation from the Russians at meetings on Saturday and Sunday relating to IDNs.

8) GNSO Recommendations on New gTLDs

Kurt Pritz advised that the paper described the recent accomplishments by staff for the Board to review and there is a list of papers to facilitate the Board discussion. We're going to continue to provide the papers to the Board and reformulate those with a view to providing similar information to the community. There is also a technical paper to be released. Staff considers that the task is to clarify these issues for the Board and in the Executive Committee meeting staff developed a matrix to compartmentalize all of the issues. It will describe the implementability of each and accomplishments against the schedule. We think that compartmentalizing issues in that way will crystallize into four or five recommendations that require discussion and can be discussed in one or two meetings in digestible formats.

Susan Crawford acknowledged the hard work done on implementation. With regard to the tricky moral, public policy and rights of individuals she voiced concern that these recommendations are unworkable. She advised that she will continue expressing those concerns and asked if the Board will be voting on the recommendations as a package or will the recommendations be considered one by one when it comes to voting.

Rita Rodin advised that there had been a discussion about this by the Executive Committee, and the Board passed a resolution to develop papers on implementation. We now have papers prepared by Kurt and staff, but we're still not coming up with the complete picture on the workability of issues. What we heard at the Executive Committee level was a series of positions from the staff with Paul's input and the Board will discuss these together.

The Chair raised two concerns: with regard to publicity, the Board needs to make clear where we are in terms of investigating implementation. The decision in Los Angeles was to investigate implementation before adopting the policy. We need to keep the GNSO and the rest of the community informed and that's where the matrix idea came from. Second thing is when do we get to grips, as a Board, on an issue-by-issue basis.

Paul Twomey advised that a group of staff spent considerable time on this recently and there are a number of inter-related issues and if you take a position on one it potentially effects two or three other recommendations. Staff is working hard on what are the implementation issues and intend to bring them to the Board as a whole to get a sense of the effects. He is not against point-by-point consideration by the Board, but suggested it would be better to have the discussion as a piece of the whole.

The Chair reflected that it would be difficult if we get a package and can't change it because if you do the ball will unravel. He asked if there is a point where we need to go back to the GNSO to change policy, or is that actually happening.

Paul Twomey advised that he expected that the community could respond to proposed implementation, whether it goes back to the GNSO he is not sure. Understanding the point the Chair is making, he reflected that he's not saying to take it as a whole, but just wanted the Board to be aware that there are interdependencies. What is clear is that he feels it would be difficult for the Board to approve policy without seeing the difficulties of implementation; they need to be seen together.

Rita Rodin agreed that it is a chicken and egg scenario and we need to understand on the whole what's implementable. It would be possible to consult with the GNSO if the staff suggests some aspects are weak.

Bruce Tonkin suggested that the Board should try to allocate a chunk of time in New Delhi to discuss the contentious issues so the Board is aware of the considerations. He considered that if consistent with policy recommendations but staff proposed a specific implementation it is a public comment process rather than GNSO formal response; if we want to change a policy recommendation we would need to consult the GNSO more formally.

The Chair noted what Paul and Kurt have said during the discussion but will not be able to take this issue further at this time.

9) UDRP Provider Application from Czech Arbitration Court

John Jeffrey advised that staff is recommending that the Board approve the application from the Czech Arbitration Court (CAC) to be UDRP provider and reminded the Board regarding the recent discussions relating to CAC.

The Chair noted that this has the support of the IP Constituency and changes proposed in the UDRP bylaws.

Jean-Jacques Subrenat asked about the number of languages the service could be provided in and was advised that it is most European languages with the later addition of some Asian

Rita Rodin moved and Steve Goldstein seconded the motion to adopt the following resolution:

Whereas the Czech Arbitration Court (CAC) has made application to ICANN to be approved as an UDRP provider, the application was posted for initial public comment on the 25 May 2007, posts which CAC has taken into account comments received in various forums and the revised application was posted for comment on 2 November 2007.

Whereas the staff have considered the further comments made in the comment period for the revised application, and has required revisions of the proposal from CAC.

Whereas the revised CAC application contains features that are beneficial and innovative for the UDRP.

It is hereby resolved (2008.01.06) that the Board approves the application of CAC to become a UDRP provider, and advises the General Counsel to enter into discussions with CAC regarding the process for CAC's provision of UDRP services.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

10) Update on Status of Bylaws-Mandated Reviews

Denise Michel gave a brief update on the status of the Bylaws-Mandated Reviews and the board agreed to take this up again at the next Board Meeting and offline.

11) Board Governance Committee Recommendations on Appointment of Chair and Members of ALAC Review Working Group

Information from BGC Meeting 16 January to be provided during Board Meeting

Roberto Gaetano advised that the proposed membership of the ALAC Review Working group is Harald Alvestrand, Karl Auerbach, Vittorio Bertola, Tricia Drakes, Thomas Narten, Nii Quaynor and Jean-Jacques Subrenat. Tricia Drakes is proposed as the Chair of the working group.

The Chair proposed a motion that the Board appoints Tricia Drakes as the Chair of the ALAC Review Working Group, which also includes Harald Alvestrand, Karl Auerbach, Vittoria Bertola, Tricia Drakes, Thomas Narten, Nii Quaynor and Jean-Jacques Subrenat.

This motion was moved by Steven Goldstein and seconded by Susan Crawford.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

12) Board Governance Committee Recommendation on approval of Contractor for ALAC Review Working Group

Roberto Gaetano advised that the consultant recommended by the BGC to undertake the ALAC review is Westlake Consulting and requested the Board approve this recommendation.

Roberto Gaetano moved and Jean-Jacques Subrenat seconded this motion.

It is hereby resolved (2008.01.07) that the CEO and President be authorized to negotiate contract with Westlake Consulting to conduct review of ALAC.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

13) Board Governance Committee Recommendation on dissolution of Board Meetings Committee

Roberto Gaetano recalled that the dissolution of the Board Meetings committee had been discussed some time ago and it was agreed that the committee be dissolved. The motion is to propose that the Board dissolve the Meetings Committee.

The Chair reflected that there is a corollary to this in that anything arising about meetings will be dealt with by the Executive Committee

Roberto Gaetano confirmed that this is what was agreed in Los Angeles.

The Chair noted his opposition to that on the basis that the Executive Committee is doing far too much

Roberto Gaetano advised that this is only a temporary measure pending the review of committees to be conducted by the BGC.

Susan Crawford moved and Roberto Gaetano seconded the motion. that the Board Meetings Committee be dissolved.

It is herby rosolved (2008.01.08) that the Board Meetings Committee by formally disolved.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14-0.

14) Redelegation of .AE ( United Arab Emirates)

Kim Davies advised that on 31 July 2007, IANA received a request for the redelegation of the .AE ( United Arab Emirates) top-level domain. The .AE domain is presently operated by Etisalat's UAEnic unit. Etisalat is a dominant telecommunications company in the country. It is proposed the domain be transferred to the Telecommunications Regulatory Authority, a government mandated entity responsible for “telecom assets”. The TRA proposes to establish a specific entity known as the AE Domain Administration to promote and develop the .AE domain. It will rely on technical support for registry implementation from an established registry services vendor. Local Internet community support for this application has been provided from the Emirates Internet Group. Given the local cultural issues, it was not considered likely that substantial additional support would be forthcoming.

The Chair noted that the original report said no local Internet community support was available, but that additional correspondence was received just prior to the meeting.

Kim Davies advised that this is the case and noted that IANA had not had the opportunity to investigate the legitimacy and substance of the letter, but advised that the ICANN Regional Liaison, Baher Esmat, had confirmed it as legitimate.

Paul Twomey indicated that this issue was summarized very well, and the background to the redelegation was common to other countries in the Gulf region — that the original operator has been local telecommunications provider but as competition has increased the telephone company was no longer considered appropriate. Similar steps had been taken in other nearby countries. There was confusion in the minds of the applicant, but recent communication has helped close some of those loops and it was expected that this is the most you could expect from community.

Jean-Jacques Subrenat raised concerns about the trend towards moving domains to regulators without local consultation, and that it related to a central issue of governance. Noting that in this particular case, in the findings put forward by Staff, local consultation had not been found satisfactory, Jean-Jacques expressed the view that ICANN should ask for further information or action. He added that ICANN should state preferred policy orientations when it has the opportunity.

Dennis Jennings indicated his support of Jean-Jacques Subrenat's views. He noted that territories will pass laws that appoint the regulator as the manager irrespective of the views of the local Internet community, and that ICANN will have to work out how to deal with that.

Goldstein move to accept resolution in view of the stated local Internet community support. The Chair proposed a resolution that the Board approves the request for redelegation of .AE.

Steve Goldstein moved and Rita Rodin seconded the following resolution:

Whereas, the .AE top-level domain is the designated country-code for the United Arab Emirates.

Whereas, ICANN has received a request for redelegation of .AE to the Telecommunications Regulatory Authority.

Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the best interest of the local and global Internet communities.

It is hereby resolved (2008.01.09), that the proposed redelegation of the .AE domain to the Telecommunications Regulatory Authority is approved.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 13-0 with one abstention by Jean-Jacques Subrenat.

Jean-Jacques Subrenat set our his reasons for abstaining in a written statement to the Secretary following the Board Meeting as follows: “IANA, in its findings, noted that the application for .AE did not meet the general criteria for local Internet community support”. As noted above in the description of the meeting, during the Board discussion Jean-Jacques Subrenat had suggested that ICANN solicit further information on specific points of concern that need further elaboration.

15) Supplemental Resolution re: Brussels Branch Office

John Jeffrey advised that this resolution relates to ICANN's business filings for its Belgian office, and will allow ICANN to maintain the business status in Brussels and file for appropriate business licenses and license changes.

The Chair moved and Susan Crawford seconded the following resolution:

Whereas, in 2005 the Board of Directors unanimously approved ICANN Resolutions 05.77-05.83 to establish a branch office of the Internet Corporation for Assigned Named and Numbers (“ICANN”) in Brussels, Belgium; and

Whereas, ICANN must update some of the information relating to the operations of the Brussels branch office.

Resolved (2008.01.10), that in accordance with the purpose clause of ICANN, the branch office in Belgium, located at 6 Rond Point Schuman, Bt. 5, B-1040 Brussels, Belgium, continues to support ICANN's headquarters in Marina del Rey, California, in performing ICANN's mission with respect to Internet activities in Belgium and in other countries, including but without limitation, policy support functions, facilitation of communications with constituents in time zones similar or close to that of Brussels, Belgium, and liaising with the regional internet registries and performing other regional consultations. There is no separate mission of the Belgian branch office separate and apart from supporting ICANN's aforesaid headquarters.

Resolved (2008.01.11) that while the activities carried out by the Belgian branch office may change from time to time as needed to support ICANN's headquarters, ICANN does not now and does not intend in the future to receive or in any way generate revenues in Brussels.

Resolved (2008.01.12) that Mr. Olof Nordling, a Swedish citizen, shall continue as the branch manager and legal representative in Brussels, as set forth in ICANN Resolution 05.79, until his appointment is withdrawn by resolution of this Board of Directors.

Resolved (2008.01.13) to appoint Mr. Howard Liebman and Mrs. Danielle Machiroux at Jones Day, electing domicile at Boulevard Brand Whitlock 165, 1200 Brussels, Belgium, each acting alone, as proxyholder, with full powers to prepare, sign and file all documents and in general do all what is necessary to proceed with all required formalities with the Clerk of the Commercial Court, the Belgian State Gazette, the Crossroad Bank for Enterprises, the Corporate Counter and the V.A.T. administration. Mr. Howard Liebman and Mrs. Danielle Machiroux are each entitled to sub-delegate any and all of the above powers.

A voice vote was taken of all Board Members present on all three resolutions and the motions were approved by a vote of 14-0.

16) UPU's .POST Agreement Update

Briefly mentioned that the discussions are ongoing and that more information coming will be coming to the Board in New Delhi.

17) Update on Preparedness for India ICANN Meeting

Paul Levins advised that the cost of the New Delhi meeting is projected to be double the original budget. This happened because ICANN has taken on more responsibility and there was little data available on actual costs prior to organizing this meeting, and we are outsourcing more. Another reality is that India is in demand as a city to meet in and we didn't anticipate that demand. We have reduced the amount of staff travel expenses for the meeting in New Delhi. Vendor costs have been reduced and additional sponsorship of $100,000.00 was received from the host. This has resulted in savings of the order of $625,000.00. As a result of this exercise we now have a better understanding of vendor costs and greater rigor in our organizing and budgeting processes. Paul thanked the hosts for their assistance in working through these issues, particularly Dr Govind, Ravi Shenkar, Ramaraj and Ram Mohan.

18) Discussion of President/CEO's Report for December 2007

Paul Twomey advised that the key issues in the December report are the discussions on the JPA in US that have been occurring over the past several weeks. He will be providing a further summation to the Board on this in the next 24 hours.

Financially we are still in strong position, $2.8m over budget in change of net assets and thus we're in a reasonably strong position. We expect that the forecast for FYE08 will not have such a high amount over budget due to ramp up of costs and the fact that two out of three meetings will be held in the second half of the year. We will provide an updated report for you at the New Delhi meeting.

Registrar data escrow and RAA—there has been a lot of work on registry failover and this a major security step forward.

The single letter domain comment period has come to a close and at the moment an RFP has been issued to find someone with the skills to design an auction process.

New TLDs is big piece of work and involves consultants.

Contractual compliance, a major report has been prepared and drew attention to the work on not only WHOIS data but also WHOIS studies. There has been an intense amount of work on this. Ensuring compliance a regime of a scale process for penalties is being developed.

IDN program continues, and the .TEST example project has added support for Ethiopian and has had a lot of attention on the wiki in the Chinese language.

Main things to be aware of is we're working toward an operational plan and budgeting to bring to community in February and this has taken a fair amount of time in January.

The Chair noted that the response to the 'dashboard' initiative has been very positive.

19) Other Business

The Chair congratulated Avri Doria on her re-election as Chair of the GNSO, and Louis Lee on his appointment as the Chair of ASO AC, and acknowledged the work being done in both areas.

The Chair encouraged Board members to undertake training on the new board portal software if they hadn't already done so. John Jeffrey advised that a reminder would be sent out to Board Members, and that the portal is currently populated with materials for the present meeting.

Rajasekhar Ramaraj advised that recently a contribution of $100,000 in sponsorship for the New Delhi meeting had been made to support the Meeting.

The meeting was adjourned at 6.23 a.m. PST.