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ICANN Meetings in São Paulo, Brazil

Captioning GNSO Public Forum

6 December 2006

Note: The following is the output of the real-time captioning taken during the GNSO Public Forum held on 6 December 2006 in São Paulo, Brazil. Although the captioning output is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.

>>BRUCE TONKIN: Hello. For those that are just joining us, we are shortly about to begin the GNSO public forum.

The purpose of the GNSO public forum is to basically bring the ICANN community up-to-date with our current policy development work, and also provide the opportunity for members of the community to give us input on some of the policy considerations that are currently under discussion within the GNSO.

The agenda today, we'll first be discussing the policy development process on contractual conditions for existing gTLD agreements. We will then be talking about the outcomes of the recent GNSO review and take any feedback on those outcomes. And then finally, a brief update on what the GNSO is doing with respect to policy for internationalized domain names.

So the first topic, which is the policy development process on the policies for contractual conditions on existing gTLDs, I would like to hand over to the acting chair of that policy development process, Avri Doria to take us through the current status of that working group.

>>AVRI DORIA: Thank you. I got to get plugged in.

Thank you. Sorry about that. Yes. I'm sitting in for Maureen Cubberley who couldn't come and couldn't attend.

These are the -- it's the current status of the policies for contractual conditions for existing gTLDs, otherwise known as the PDP February '06 task force.

So the current status is that we have a working draft that covers all six terms of reference, and we're in the process of moving from a set of proposals to draft recommendations that can be passed on. The constituencies are still in the process of discussing some of the proposals. On some of the proposals, there has been sufficient discussion and sufficient constituency support has been recorded to consider the proposals as proposed recommendations. Basically, the criteria if it's been used in making that determination is that if three constituencies have indicated support -- and this is not individuals, but constituencies have indicated support -- then I've indicated "support" on the notes.

If four or more constituencies have indicated support at this point, then I've marked it as "strong support."

Once this process is complete, the task force will publish a draft final report. This will then be recirculated for another round of constituency and public comment.

So I'm going to go through basically -- oh, and I've got one note.

The registry constituency has questioned whether the work of the task force vis-a-vis contract terms or pricing policy is appropriate, and has suggested that the task force cease its work on these items.

This question of appropriateness and whether we should be doing the work has been taken back to the council, to this group, which we affirmed that the task force should continue work on the terms of reference.

And at this point, any of the discussions of the appropriateness of any of the terms of reference are referred to the GNSO Council by the task force. So basically, we've moved those discussions out of the task force and if they need to be gone through, they need to be gone through with this group.

Now I'm going to go through basically each of the terms of reference quickly, one by one, showing, first of all, what the term of reference are for those that don't remember them and keep them constantly in the front of their mind, and then go through where we have proposed recommendations, show what they are, and where we have items under discussion, indicate briefly what they are, so that people can then start to comment and see our status.

So the first term of reference, 1(a), referring to registry agreement renewal, was, "Examine whether or not there should be a policy guiding renewal, and if so, what the elements of that policy should be."

We have two proposed recommendations. There's strong support for the general notion that there should be a policy regarding renewal. There is support for there should be a standard term for all gTLD registries that is a commercially reasonable length. However, "commercially reasonable length" remains to be defined. There's an open question of whether this needs to be aligned with "commercially reasonable length" as indicated in the new TLD policy, and it's still a very open question whether the policy needs to define such a length or whether that's something that is a guidance to ICANN to then determine what a "commercially reasonable length" is.

Under discussion, with no measurable -- in other words, not a level of support that can be indicated -- there are three views on contract renewal, and these are very brief abstractions of those ideas, but there's an expectation of renewal but with a rebid. Which says there must and rebid but good performance is taken into account, is given advantage.

Now, exactly how such a scheme would be set up is an implementation detail. There are suggestions, but it is an implementation detail.

There's a notion of renewal expectancy, which is: Depending on the level of compliance with a contract, the contract is renewed. So if there haven't been lots of complaints, lots of issues but it's basically gone well, then a contract is renewed.

And then there's the stronger presumption of renewal, that basically if you make it to the end of the contract, that the contract has not been terminated, then it will be renewed.

Then term of reference 1(b), "Registry agreement renewal standardization." "Recognizing that not all existing registry agreements share the same rights of renewal, use the findings from above to determine whether or not these conditions should be standardized across all future agreements."

There's basically two views on standardization under discussion at the moment. The one says that the right of renewal should be standardized for gTLD disagreements. The other one says that the right of renewal should be standardized for gTLD registry agreements except when there is an exceptional situation, such as a situation of market dominance or market power.

Term of reference 2(a), the relationship between registry agreements and consensus policy: "Examine whether consensus policy limitations in registry agreements are appropriate and how these limitations should be determined."

So on term of reference 2(a), we have three proposals, three views under discussion.

One is, consensus policy limitations are inappropriate. Consensus policies should always apply to all gTLD registries.

The second is, that consensus policies should always be applied to all gTLD registries. On an individual basis during the contract negotiation, a registry could present a situational analysis and justification which should be posted for public comment before acceptance or inclusion in the contract, for an exception or modification from a particular consensus policy due to the unique circumstances of how a particular policy would affect that registry. Exception will not create any prejudice for extension to any other gTLD registry.

And then the third view is that the present limitations to consensus policies are appropriate and should continue as are, without change.

Term of reference 2(b): The relationship between registry agreements and consensus policies. "Examine whether the delegation of certain policy-making responsibility to sponsored TLD operators is appropriate and what, if any, changes are needed."

So there was support for certain policy-decision responsibility should be delegated to sponsored gTLD operators but variations could be made based on characteristics of the sponsoring community. Variations should be discussed/disclosed in the charter for public comment. This is still very much in discussion in several of the constituencies, and pending a response from many of the constituencies.

Term of reference 3(a): "Policy for price controls for registry services." "Examine whether or not there should be a policy regarding price controls, and if so, what the elements of that policy should be. Note examples of price controls include price caps, and the same pricing for all registrars."

There's support for the statement, "There should be a policy in the area of pricing."

Term of reference 3(b): Policy for price controls for registry services. "Examine objective measures [Cost calculation method, cost elements, reasonable profit margin] for approving an application for a price increase when a price cap exists."

There are proposals under discussion -- oops. Sorry about that.

Three views on the policy relating to pricing. When a registry contract is up for renewal, there should be a determination by an expert panel whether that registry is market dominant. If the panel determines that there is a situation of market power, then the registry agreement must include a pricing provision for new registrations, as currently is included in all of the largest gTLD registry agreements. If the panel determines that there isn't market power, then there would be no need for a pricing provision. Regardless of whether there is market dominance, consumers should be protected with regard to renewals.

One of the opinions -- looks like I lost a feed there.

One of the opinions is, it's too early to formulate policy. A new PDP should be initiated on this topic. I seem to have lost the slide view.

And the third is that policy relating to pricing should not be discussed.

Okay. I see that the slide still isn't showing. I'll continue to read through. There it is.

On ICANN fees -- thank you -- "Examine whether or not there should be a policy guiding registry fees to ICANN, and if so, what the elements of that policy should be."

Proposals under discussion: In order to improve ICANN accountability and effective business planning by registries, ICANN staff should immediately implement a system of ICANN fees from registry that avoids individual negotiations of ICANN fees, and provides consistency, unless there is established justification for disparate treatment. Discussion on this is pending in most of the constituencies still.

Also continuing TOR4(b) on ICANN fees: "Determine how ICANN's public budgeting process should relate to the negotiation of ICANN fees."

Proposed recommendation: There is strong support for the ICANN board should establish a task force or advisory committee to examine budgeting issues, including the manner and allocation of revenue collection, budget oversight, and budget approval processes. This group should solicit and review public comment on these issues.

Terms of reference 5(a): Use of registry data. "Examine whether or not there should be a policy regarding the use of registry data for purposes other than for which it was collected, and if so, what the elements of that policy should be."

Proposed recommendation: There is strong support for there should be a policy regarding the use of registry data which includes traffic data for purposes other than that for which it was collected.

Regarding what elements of that policy should be, we still need to do work in that area, so this is an area where the task force still needs to develop proposals for discussion. That is pending work that we need to do very soon. And so are open, of course, to suggestions.

Terms of reference 5(b), uses of registry data: "Determine whether any policy is necessary to ensure nondiscriminatory access to registry data that is made available to third parties."

Proposal under discussion: There should be a policy to ensure nondiscriminatory access to registry data that is made available, but that policy should include safeguards on protection against misuse of the data.

Discussion on this is still pending in several constituencies.

And term of reference 6, investments in development and infrastructure: "Examine whether or not there should be a policy guiding investments in development and infrastructure, and if so, what the elements of that policy should be."

There is support for: There should be -- there should not be -- sorry. There should not be a policy guiding investments in development and infrastructure. ICANN should, however, establish baseline requirements or perhaps guidance for the security and stability of the registries, and anything above that would be negotiated on a case-by-case basis, if necessary. Such a baseline requirement should or could be recommended by the board -- to the board by the SSAC after consultation with the gTLD registry operators. In determining these recommendations, the SSAC should also solicit and consider public comments.

That's it for the terms of reference.

The final thing to report on is our continuing guideline. Basically by the end of this year, 20 December, the pending constituency statements on proposals in the working document. We need to complete the outstanding work, some of the wordings, go through the constituency levels of support, come up with final statements of support on those things. By the beginning of February, release a draft task force report to the task force. The task force then sits and determines -- they confirm that this draft task force report goes to the council. Then the council meets to consider the draft task force report, it goes for a public comment period -- this will be our second public comment period on this PDP -- then after the public comment period closes, incorporation of all the public comments, constituency impact statements into the report, and the GNSO Council meeting in Lisbon to sign off on the final task force report.

And that's the report. Questions?

>>MARILYN CADE: Avri, I have a point of clarification.

>>AVRI DORIA: Sure.

>>MARILYN CADE: Would you return to what is 5(b), if you find.

>>AVRI DORIA: Sure.

>>MARILYN CADE: And we can ask the staff to verify this, but in my notes, I just want to verify, I thought you said that there was no support -- or that it was pending support from everyone for 5(b) and my notes show that the ISP constituency and the BC constituency showed support for this --

>>AVRI DORIA: Yeah. That would be two. And basically we were using as a threshold -- so we had pending responses, but if there were just two, then I wasn't indicating a level of support yet, and indicating that it was still under discussion.

>>MARILYN CADE: Right. I just wanted to point out that in the -- the term "no support" is actually -- there is support, but it did not meet the threshold.

>>AVRI DORIA: Did I say there was no support?

>>MARILYN CADE: Yeah. And I just wanted to clarify that, because as we go through this to -- to the audience, as we go through this, since we have pending -- pending input from several folks.

>>AVRI DORIA: Yes. In fact, I indicate that on the slide, that the discussion is still pending.

>>MARILYN CADE: Right.

>>AVRI DORIA: In several constituencies. And I misspoke if I said there was no support. It's proposal under discussion.

>>MARILYN CADE: Thank you.

>>BRUCE TONKIN: Okay. Is there any comments from the members of the audience on any of these topics? Looks like we have Jordyn approaching the microphone. Go ahead, Jordyn.

>>JORDYN BUCHANAN: Thanks. If anyone doesn't know, Jordyn Buchanan, speaking only for myself.

Firstly, a question, and if -- I got here a little late so if this was covered already, I apologize. Has there been any discussion within this task force about enforcement mechanisms for the contract?

>>AVRI DORIA: The question was whether there had been any questions about enforcement mechanisms for the contract.

I don't believe so. I didn't make it to every meeting, but -- but as far as I follow, I do not believe that that was in the terms of reference.

>>MARILYN CADE: Could we just -- Jordyn, could you just clarify. Meaning --

>>JORDYN BUCHANAN: Some tools or mechanisms available to the staff for encouraging compliance with the contract, short of simply terminating the contract.

>>MARILYN CADE: Oh. So if I could --

>>JORDYN BUCHANAN: Sanctions yes.

>>MARILYN CADE: Sorry. I'm kind of engaging in a dialogue with you to make sure I understand the question.

In the present -- in the present dot com agreement that's just been signed, and in the three pending contracts, for example, there are -- there's this area of breach that can be cured by the registry.

>>JORDYN BUCHANAN: Right.

>>MARILYN CADE: So if you could just clarify: Are you asking about that aspect of -- in relation to these six elements? Or whether, if one of these elements or more became consensus policy, what the compliance and enforcement tools would be to the staff?

>>JORDYN BUCHANAN: Yes. So I actually don't care which elements of the contract we're talking about, but whether they're decided on as part of this PDP or they already exist in the contract, but if a registry operator seems to not be compliant with their contract, it seems like it would be useful for the staff to maybe be able to -- instead of saying, "Okay, here's a breach. Cure it. Otherwise, we're going to terminate you," have some sort of graduated sanctions, mechanism that would allow them to encourage compliance without necessarily -- the other problem I see potentially is you get into cycles of breach-cure, breach-cure, breach-cure, and there's no incentive for the registry to do anything other than engage in a cycle.

>>AVRI DORIA: I guess that would fall perhaps -- there certainly isn't in the terms of reference that deal with how an ICANN would manage a contract during the course of a contract. I think that some of that would fall under the discussions of the various degrees of expectations of renewal, renewal expectancy, and such, and the gradations where it's automatic or gradations where there are -- if there was this constant cycling of breach-cure, breach-cure, breach-cure, then it might fall in one of the other spaces, in the renewal expectancy or certainly the people that have the proposal on renewal expectation with rebid.

So -- but it's really not enforcing of a contract during the period of the contract wasn't in the term of references, as I understand them.

>>MARILYN CADE: To elaborate on that, Jordyn, I was the rapporteur on the group that discussed the particular recommendation that suggested that there could be something called a reasonable expectation of renewal, and that it should be taken into account so that the behavior of the registry should be taken into account at the time of the -- of the LATs, of the agreement. I use that term because in a presumptive renewal, there is not necessarily actually a negotiation. Or the power to insist on a negotiation. And that has been of concern to my constituency and to me.

In taking -- but as Avri said, the implementation detail of that has been -- the elaboration -- maybe that's a better term -- of the implementation detail of that has not been addressed. It would, to me, come into play in an implementation working group prior to the completion of consensus policy and have need for more of a dialogue with the operational staff, I believe. And the legal staff.

>>JORDYN BUCHANAN: Okay. I do think this is an important topic area, generally. I think one of the reasons why, perhaps, we see sometimes sort of marginal behavior out there is there's not a lot of incentive not to -- not to engage in it, and so I guess I'll use this -- since I'm leaving soon anyways, I'll use this as my periodic request to the council that you -- either as part of this or as part of a future PDP -- create a set of enforcement tools, including sanctions, for the staff to use in enforcing both registry and registrar contracts.

>>MARILYN CADE: Jordyn, I have --

>>PHILIP SHEPPARD: Jordyn, if I may just jump in, it's probably worth pointing out that of course in the new gTLDs PDP, there's a very clear recommendation under term of reference 4 -- and I'm quoting 4.5 -- that "There should be a clear sanctions process outlined within the base contract to terminate a contract with a new gTLD operator who's been found in repeated nonperformance of the contract." And certainly the discussion we had on the group for that was the concept of a graded sanctions process, and that was a clear recommendation, I think, that had universal support, if I recall.

So maybe there is some cross-PDP learnings to be had there.

>>JORDYN BUCHANAN: That's excellent. I think it may be -- I don't want to suggest to the council where the right place to have this discussion is and what PDP it might be in. But I think for both registry and registrar contracts, this is an element that seems missing today that we should strongly encourage council to pursue work in this area. Bruce, can I ask one more question.

My other question is: To what extent has the task force given consideration? I notice in a lot of the registry contracts there is this phrase or condition that says, like, you should get a contract that looks like roughly equivalent to the existing contracts that are out there. I don't know the exact language.

But to the extent that that could be read to essentially allow existing gTLDs to get conditions that look a whole lot alike the dot com contract, has there been discussion about what the applicability of this work generally is?

>>AVRI DORIA: There has been some discussion but, again, not specifically to any of the terms of reference.

>>MARILYN CADE: I'm going to -- so I think actually, Jordyn, we have talked about that quite a bit and I believe Avri's suggestion -- the task force has referred questions about that back to the council. The council has engaged in an exchange of communication with the general council and there has been a three-page document -- a three-page memo sent to the council and I believe that we agreed at the task force level that we -- so the idea of whether it is consensus policy or not is yet to be determined but the idea that this information is helpful to provide guidance or -- and can be addressed at the time of the lapse of an existing contract, I would say is still on the table. That is, the applicability that could be applied to a contract that is lapsing is still on the table.

>>JORDYN BUCHANAN: Right. So, I guess, I will make my comment now, which I think is, I think I advocated pretty strongly back in Vancouver that this PDP ought to take place, that we ought to have a registry policy that the staff could use to base contracts on. I still believe that's really important.

I also believe it is really important that the policy actually matches reality so to the extent that there are -- to the extent there are contractual constraints on existing TLDs already in place, that the policy essentially or parts of the policy might not be able to become effective really for any of the existing TLDs, I don't know if that's true or not.

I'm saying to the extent that is actually the case I think it is actually really important that the contract should -- I mean, the policy should probably spell out this only applies to existing TLDs and in the land of existing TLDs essentially all of the contracts have something that says this and we can't change that. That should become the policy for those existing TLDs so the policy we adopt matches what the contractual landscape actually looks like.

>>MARILYN CADE: Jordyn, if you go and take a look -- if we all go and take a look at consensus policies that are on the ICANN Web site, we see that the council has passed consensus policy, sent it to the board, the board has approved consensus policies and applied those consensus policies to existing contracts.

We've had a lot of discussion about what the picket fence is, et cetera. What I am trying to understand is your question that we should make it clear that in certain elements a consensus policy, although enacted, cannot be applied during the time of a contract and then make it clear that said consensus policy can be the subject of application when a contract is renewed.

>>JORDYN BUCHANAN: So that would be fine, if possible. I guess what I am saying is after consultation with the general council and a review of the existing contractual terms, the council realized, for example -- let's take the example of renewal. Let's say the board approved the biz, info and org contracts which I hope they will not do until this process is complete. Let's say hypothetically they did. Let's say you look around and there are no registry contracts today that don't have a provision that essentially say perpetual renewal. I don't think it is helpful to have a discussion about what the renewal expectation should be for existing contracts because all the contracts already have language that can't be modified that get to say we get to have the same renewal provision over and over again.

So I think to the extent that there are elements of existing contracts that essentially obsolete -- some thinking on these things, I think we should make sure the policy reflects the actual landscape. I think it is said we are in a position but I think it is important we have a policy framework that matches the reality that people have.

>>BRUCE TONKIN: Jordyn, if I can comment on where that logic is going. I am not sure I understand it. You are saying a policy development process is a consensus process where from bottom-up people come up with a policy recommendation, if you like. Whereas, something that exists in the past may not have gone through that process. And so to sort of say because something exists in the past, a policy must match what exists in the past. The logic is probably back to front.

I think what you are saying is in recommending a policy we need to be aware of the limitations of how it can be applied. And I think in any of our policies if we go to a higher level and we don't consider this particular policy -- but one of the parts of the final report -- the requirements for a final report is to discuss how the policy would be implemented and the impact of that policy on the existing contract holders, if you like.

So in that section of the agreement it may well -- sorry, that section of the final report, it would probably just say here is the policy recommendation that came from the bottom-up process in terms of its applicability to these registries, it is not applicable for the following reasons. And then perhaps the logical step from that could be argued that maybe a policy isn't broadly applicable because it is so limited by its ability to be applied.

I am just weary of making a comment that a policy group that is bottom up says we have to sink crow physical with an existing contract that was developed through a bottom-up process. I think there is a danger of what you are proposing.

>>JORDYN BUCHANAN: I am aware of that, too. I think it is terrible we are having this conversation. I don't think we should have not been put into a position where there is a lot of policy instantiated in contracts and essentially contracts that is instantiated in contracts with language saying this can never be changed by a consensus policy, that's the reality. We have a lot of contracts that are just like that.

>>BRUCE TONKIN: That's right, yeah. It is not policy that instantiated in contracts. It is contracts that affect future policy.

>>JORDYN BUCHANAN: So let me rephrase. There are issues of policy concern that are instantiated in contracts today that essentially have language around them saying you can't go touch this with the consensus policy. If you look at one of these issues and you are about to propose a policy and then you look to see essentially 100% of the existing gTLD contracts prohibit applicability ever, it just seems like what's the point? Then you have a policy that will never match the reality for any of the contracts that the policy applies to.

>>BRUCE TONKIN: Thank you.

>>MARILYN CADE: Jordyn, I just want to support what Bruce said and say that I'm sorry there aren't more board members here listening to us again explain our concerns that because something has been done, perhaps with good intentions by staff, to make policy without referring to the council to ask for guidance and in many cases they had time to do so, doesn't mean that should continue.

The council is a partner to the board in addressing these issues and these concerns and a partner to the community.

>>JORDYN BUCHANAN: Yeah. I will make one last comment and sit down. My comment is, I agree with you 100% that the council and the bottom-up process is the proper source for developing policy. I guess I am just encouraging you don't waste your time on stuff that's not -- this PDP applies only to existing contracts and if the existing contracts essentially say there are areas where what you decide is never going to apply, what are you doing?

>>MARILYN CADE: Jordyn, I have a final question for you. If it were determined by international law or by a majority of national law that a certain element of concern, wouldn't, in fact, contracts have to be reconsidered? Isn't that what happens?

>>JORDYN BUCHANAN: I don't know the answer -- I don't know the answer to that, Marilyn. To the extent you believe that's true, I guess maybe this is a more valuable exercise than I think it is. I do believe it is very important to set the policy framework. I just think we should be mindful of what's going to happen when we do it.

>>ALISTAIR DIXON: Can I just make a comment? Jordyn, we have, of course, reviewed the existing contracts. We are reviewing existing contracts in the course of the process and I don't think it is the case that that all those contracts preclude everything we are discussing. I think there are at least quite a portion of them do enable these provisions to be incorporated at the time of renewal, at least.

>>JORDYN BUCHANAN: So I think, Alistair, there may be some areas you are discussing where that is more or less true. That's what I am suggesting you take a look at.

>>BRUCE TONKIN: The way that has been handled, Jordyn, is in the analysis stage. Once the recommendation has been seen to have -- we will move into what's called a draft status which means using every definition, there is perhaps four constituencies that are supporting it and it is a draft recommendation. I think we would probably go back to the general council's office and say here is a draft recommendation, can you advise on its applicability? Just as we are doing with the new gTLD process and that may either result in some modification or at least clearly identifying that there is that implementation issue.

Any other questions on the work of the policy development process?

>>MAWAKI CHANGO: Yes, Bruce. I would like to suggest maybe we can start a discussion here about the term of reference 3, the policy for price controls for registry services because it was suggested during our last discussion on this we had this week that policy for price controls does not necessarily imply price capping. So can we maybe elaborate on that with contribution from the public here? Thank you.

>>BRUCE TONKIN: Okay. There are any public comments on the topic of price controls and whether they should or should not be any?

>>MARILYN CADE: I'm sorry, Bruce. I need to be sure that I clearly understand the question. I believe actually the question is should there be a policy for price controls.

>>BRUCE TONKIN: That is the question, yes.

>>MARILYN CADE: And I think that's a very important distinction.

>>BRUCE TONKIN: Thank you. Any comments on that? It is probably worth noting here that on this particular topic some constituencies feel constrained in their ability to discuss it due to potential legal concerns with either antitrust laws in the U.S. and other equivalent laws in other countries. Certainly it is a sensitive topic area.

If we don't have any more comments on this PDP, we will go through the recommendations on the GNSO review and thank Avri for her presentation.

>>AVRI DORIA: Thank you.

>>MARILYN CADE: Bruce, I have a final question to you that I would just like to put on the record, if I might. We did publish a time line but I take note and appreciate the fact that Susan Crawford, one of our board members is here. But I think this is a useful question for other board members as well. The time line is actually a bit more extended than we had originally planned, but in our discussion we had encouragement that providing guidance as much as we could at this stage would be helpful and important.

It looks to me like the time line we are proposing, we are far enough along, can be seen as a relatively firm time line. I am looking at the interim chair here.

>>AVRI DORIA: Yes. I believe that this one is relatively firm given the amount of work that has been done and the amount of work that's pending. It should, indeed, be good.

>>MARILYN CADE: I think that would be useful to report back given the earlier conversations about when we would have a policy recommendation.

>>AVRI DORIA: I also think that the status of the report at this point gives a good indicator of some of the areas of concern and some of the areas where agreement is approaching being done.

>>BRUCE TONKIN: I think in the council meeting later this morning, we will go through, I guess, each of the task forces and just confirm what the current time line is and I will use that as a basis for reporting back to the broader ICANN community and the general ICANN public forum tomorrow. So we will do that.

The GNSO review, the ICANN bylaws require an ongoing review every three years of each of the Supporting Organizations, each of the Supporting Organization councils and each of the Advisory Committees, I believe, I guess being the one that has the most activity has been the first to be reviewed. The GNSO council review was carried about two years ago now, perhaps, and this year we have had a review of the GNSO Supporting Organization as a whole. The terms of reference for the review covered four main themes and they were representativeness, openness answer and transparency, effectiveness and regularity and compliance.

And the work that was done was using online surveys, interviewing stakeholders, analysis of the GNSO and ICANN data. And it attempted to cover a wide range of views and inputs as possible.

I will go through this presentation fairly quickly and jump into some of the specific recommendations. The bit in red here was interesting, I thought, and that was that when they -- when the reviewers worked out the total number of hours that had been spent on WHOIS-related work since 2002, it involved roughly 35,000 hours of work at a national cost of 6 million. I'm assuming that's the cost of the time of the members involved in doing that work. So certainly, that gives you an idea of just how much work goes on behind the scenes between ICANN meetings.

The four principles that the reviewers identified was that they had recommendations relating to improving the representativeness of the GNSO council and its constituencies, that the operations need to be more visible and transparent to a wider range of stakeholders, that the structures need to be more flexible and adaptable so that they can respond more directly to the needs of stakeholders. And changes in the council's operations are needed to enhance its ability to reach genuinely consensus positions.

So on the topic of representativeness, the basic concept here is that bottom-up policy development should make it easy for potential participate apts to find which organizations are involved in the GNSO and so the recommendations that relate to this principle was that there should be a centralized register of all GNSO stakeholders which is up to date and publicly accessible and that the GNSO constituencies should be required to show how many members have participated in developing the policy positions they adopt.

Further, Recommendation 3 was that there should be greater coherence and standardization across constituency operations. And more staff support is required in this area. In particularly a constituency support officer should be appointed to help constituencies develop their operations, Web sites and outreach.

Further, there should be incentives for participation. It is noted, I guess, participation in the commercial and non-commercial sectors is not easy and some constituencies seem remote from the heart of the ICANN process subject to activity by a small core of dedicated people. So the recommendations in this area were that the constituencies should focus on growing balanced representation and active participation broadly proportional to the wider global distributions for relevant indicators.

And the basis for participation should be revised from constituency membership to ICANN stakeholder participation.

So now we are into the second principle which is that the operations need to be more visible and transparent. It was noted that the GNSO Web site is a vital interface for managing and growing the bottom-up policy process. And it was noted that although it was intensively used as a working tool for GNSO participants, it make the design and layout difficult for the non-initiated policies and documents. This recommendation which is similar to a recommendation which was in the GNSO council review should be an improved design of the GNSO Web site, develop a Web site strategy including collection and regular review of usage statistics. It was also noted that document management within the GNSO needs to be improved and the presentation of the GNSO policy development work made much more accessible.

Still on the topic of making things more visible, the GNSO does not produce a forward-looking statement of upcoming work that can be understood by outsiders. There is no branded GNSO documentation for wider consumption, despite a wealth of expertise on gTLD policy issues. This recommendation is that we should publish annually a public policy plan to act both as a strategic document and as a communications and marketing tool for general consumption outside of the ICANN community.

And that the GNSO and ICANN should provide information-based incentives for organizations to monitor and participate in GNSO issues.

Still on the topic of making things more visible and transparent, they said the role of the council chair is extremely important and there is basic gaps in the operating procedures, need tightening up to reduce uncertainty. And so the recommendations were that the role of the chair needs to be more visible. The policy on GNSO councillors declaration of interests needs to be strengthened with the ability of a vote of no confidence. And fixed term limits should be agreed for GNSO councillors.

Now, into the topic area that the GNSO structures should be more flexible and adaptable. Major policy development discussions may often be hindered by tackling key policy issues early enough in the development process. The analysis appears to be weak and there is little framework or incentive for constituencies to be flexible with their stated positions.

The recommendation that follows is that the council and related policy staff should work together to grow the use of project management methodologies and that issue analysis should drive policy development and data collection from constituencies should encourage prioritization and discussion of key issues rather than general statements of position.

So still on the topic of being more flexible and adaptable, the council relies heavily on monthly whole-of-council teleconference calls and use of mailing lists. Although teleconferencing helps to bridge communications across time zones, it is demanding and not well geared towards consensus-based discussion across constituencies. So it recommends that the council should rely more on face-to-face meetings supplemented by online collaborative ways of working. And the chair should seek to reduce the use of whole-of-council teleconferencing.

Recommendation 16 is the councillors should have access to a fund for reasonable travel and accommodation to these face-to-face meetings.

Further, on the topic of being flexible and adaptable, it notes that the task forces can be a useful way to pry open policy issues and identify key strata for discussion. Analysis of the task forces shows that the range of participation is narrow and prone to inward-looking policy and intractability.

So here it recommends that the council should make more use of task forces, but drawing on a wider range of people from the community. And an ICANN associate stakeholder category of participation should be created to create a pool of expertise and encourage their ongoing participation.

And further on the topic of being more flexible and adaptable, it was noted that the operating procedures of the policy development process form part of the bylaws and it is difficult for the council to be innovative with different working methods.

There is also very little of sign of work to follow up on implementation policies. It recommends the amount of detailed prescriptive provision in the bylaws relating to the operations of the GNSO should be reduced and transferred to the GNSO rules of procedure.

And that ICANN and the GNSO should compile or commission a formal assessment every five years or so of the policies relating to gTLDs.

Finally, on the fourth principle, that changes in the operations are needed to enhance the ability to reach genuinely consensus position, the review noted that the constituencies show signs of inflexibility and lack of responsiveness to new types of Internet-specific stakeholders. The GNSO constituency structure should be radically simplified to cover these three main areas of registration, business, and civil society.

Reorganization of the constituencies would allow the council to be made somewhat smaller and, hence, easier to manage and fund.

Further on this topic is that the current voting system provides weak incentive for consensus building. The current system for electing seats 13 and 14 to the board, and the GNSO council chair, involve two rounds of voting and low incentive for candidates to appeal to other constituencies.

So their recommendation here is the definition of "consensus" should be raised to at least 75% and weighted voting should be abolished. And further, the way in which the GNSO council votes to elect directors should be changed to use instant run-off system, otherwise known as supplementary vote.

So that's a summary. This presentation was prepared by the party that did the GNSO review. So I'm really just reading what they have stated. And at this point, I would like to open up for the opportunity for anybody from the audience to comment on what they think good or bad recommendations. And I guess in particular there are about 22 recommendations here and, perhaps, feedback on which recommendations the community thinks are the highest priority to implement.

I will note also, that this report has been submitted to the ICANN board and the ICANN Board Governance Committee is considering the report and will in due course inform the community on what they believe the next steps are.

But certainly I think they are very interested in the community's reaction to this report and anything said here will form a transcript and be available for the board.

So are there any -- does anyone wish to comment on the GNSO review?

Okay. All right. If there is no comments -- Chuck?

>>CHUCK GOMES: I will be brief. This is Chuck Gomes from VeriSign and I am speaking on behalf of the gTLD registry constituency, since our chairman and vice chair aren't here at this moment.

But just wanted to let you know that any time now, I hope comments should be posted by the -- for the constituency on the comment site regarding the LSE report. They were sent in almost 24 hours ago but apparently there are some technical difficulty in getting them posted. I won't go into the details of those. But the constituency submits those with the intent of being constructive, raising a lot of questions and issues that we think will -- we hope will help us all as we look to ways to improve the GNSO.

>>MARILYN CADE: Bruce, I might -- it is Marilyn Cade as one of the BC councillors and I am sure other councillors may want to make update statements. I think it would be important for the record to show that the fact that individuals and constituencies have not been able to necessarily post formal comments on the site should not be an indication of lack of interest or lack of work in progress.

It has been an incredibly busy policy season for all of us. If I can use incredibly, incredibly busy policy season for all of us.

But our constituency and, I believe, probably others are probably developing comments. I would just make one additional comment, and since we have Denise Michel the vice president of policy, perhaps we might hear from her a bit as well. That is improving and strengthening the Supporting Organizations of ICANN is a shared and common goal.

I would hope the review process is one part of that, that that listening to earlier inputs from the council and from the constituencies on ideas for enhancements can also be incorporated in the ongoing strengthening and improvement of the Supporting Organizations.

>> Denise Michel: Thank you, Marilyn. As I think many of us have discussed in the constituency meetings yesterday, many items that could fall under GNSO improvements are also included in the proposed strategic plan and activities -- some activities the GNSO has already undertaken in terms of improving the way we handle and post PDP documents, internal collaborative work tools.

So I think it would also be useful to get the council and constituencies' guidance on recommended changes and improvements that you feel can be and should be implemented now versus improvements and recommendations that need to be part of a more comprehensive plan and process. But, yes, we're continuing to improve the way we staff and support the GNSO council, how we support the constituencies' efforts in outreach and participation and there are a number of activities that will be ongoing regardless of how the GNSO improvement plan goes forward.

>>PHILIP SHEPPARD: Denise, if I might respond to that. I think the discussion we had precisely in the cross-constituency meeting and subsequently in our own meetings yesterday, I think, endorse precisely that, and the recognition already of the overlap of things already in the strategic plan I think was important and good news. And we are working now not only in terms of our own particular take on all the recommendations, but to look at what may be an instant list of things that we hope will have universal agreement for implementation, and an initial analysis of that suggests about half of the recommendations probably fall into that category, which I think is quite encouraging.

>>BRUCE TONKIN: I think also, just to add to that comment, and some of the discussions that I think occurred in the registrar constituency meeting yesterday with the board as well was that there's -- there's probably three categories that you could break the recommendations. So I think you could certainly break recommendations into those that everyone seems to agree with and those that are more controversial, so that's one way of breaking it up.

The other way of breaking it up, I think, is to break up into those that require changes to the ICANN bylaws, which is obviously a very heavy-weight process that the board would have to kick off and do, so that's a change to the ICANN bylaws.

The second thing is probably changes in the way we, as the council, operate, which is more in our control. And as individual volunteers in that process.

And then the third level is work that is essentially a staff task, and that's probably a question to the CEO of ICANN to say, you know, "Do you have the resources to do that work?"

But an obvious one is the improvement of the Web site. That's not something that's done by the board. It's not something that's done by the council. It's -- it would be a staff-initiated exercise, which requires a budget.

And so our question would really be -- you know, I don't think there's anyone going to argue that the Web site could be better. The question is: Does the ICANN CEO have a budget for that work? So those are kind of three things that I'd identify as well.

>>MARILYN CADE: If I might just comment on the example you gave of changes to the Web site as an actually much more, I hope, complex topic, in that if you look at the strategic plan, there is a commitment to move to something that I've been promoting for some time, and I think others have as well, and that is sort of a generic -- sorry, a general-purposes white paper about issues, et cetera.

You know, I think if we're talking about improvements to the Web site, that, to me, is a codeword for significant improvement not only in findability but in the content and resources that are on the Web site. And even I've spent some time, as I think many people have, of looking at other organizations' Web sites and seeing that, for instance, instead of just have a listing of documents on a policy development process, it might be that we would have a whole page more designed to a particular policy development process, which makes it much easier for constituency members, for the general public to find their way through the information. So I -- you know, I think for us that code phrase "improve the Web site," is, in fact, a pretty complicated and, therefore, potentially resource-intensive topic.

>>BRUCE TONKIN: It probably comes under the general category of improving communications, of which Web site is one form of media, yeah. Ken?

>>KEN STUBBS: Yeah. Good morning, Bruce. I think we need to remember one thing, and that is we're building a foundation for an ICANN of the future, and I think it's extremely important for us to keep our eye on the ball there.

In the next 18 months, we're going to have a significant amount of opportunities for distraction, but at the same point in time, I think it's important for the board and for the various bodies of ICANN to realize that in order for us to be viable in the future, and in order for us to be responsive to the communities which we serve, we have to have a structure that's capable of dealing with issues in an organized, focused way.

Over the last two years, unfortunately, I think we've gotten a little distracted with a lot of the various issues, both political and geopolitical, and I think it's very important for the board to move quickly to stratify the recommendations that have been presented to it and insist that action be taken on a very timely basis. Thank you.

>>BRUCE TONKIN: Thank you, Ken. And the other comment I would make, because I love throwing in analogies, but since most of us travel a fair bit and have traveled a fair distance to get here, a fair number of us would have used airplanes in the process. We are doing the equivalent of doing maintenance on the airplane while it's in flight, whereas, you know, the probably the preference is to do that while the aircraft is landed but we still need to fly, we've got a lot of things we're working on, so we are making changes in flight.

>>SOPHIA BEKELE: Bruce?

>>BRUCE TONKIN: Go ahead, Sophia.

>>SOPHIA BEKELE: Thank you, Bruce. I just want to add perhaps to what Ken said. This also came up in our roundtable dinner with the board, in terms of improving communications, and particularly the communication between board and the GNSO and the staff impacting the policy process in general is lacking, and I think that's sort of -- when I saw that, it's not only coming from the GNSO, it may have been even from the board's side.

So I think it's very important that we -- there is a mechanism in place, that there is a substantive discussion, and ongoing open communication with the board, so that we can implement the policies quickly and efficiently. Thank you.

>>BRUCE TONKIN: Thank you, Sophia. Any other comments? Philip?

>>PHILIP SHEPPARD: Yes. I had just a brief reaction to your earlier categorization of things, which I think is accurate.

It is also worth according that perhaps there are -- in terms of changes in the bylaws, there there is perhaps two subcategories of those, one which is -- is substantive change in the bylaw and putting in some new stuff in the bylaws. And the other one, of course, relates to the very important Recommendation 23, made in the LSE report itself, which was suggesting that currently there is too much detail, prescriptive provision in the bylaws themselves and recommending taking a large scalpel to those and deferring the content then to GNSO rules of procedure, and that might be an easier process than the ones that require substantive change of text within.

>>BRUCE TONKIN: Yeah. I think I'm conscious, and this is a little bit of concern in terms of succession management, if you like, but I think over the coming years, the -- myself as chair and other members of council will be leaving council, and there's a lot of institutional memory in we've done things, and I think we've improved our procedures over time. But those improvements aren't actually reflected in our written procedure documents. So I'd say if three or four of us leave this council, a lot of that data would probably be lost. So it is important to try and get an ongoing capture of process improvements.

>>MARILYN CADE: And I think, Bruce, that was probably what you were referencing. We did start that process, you'll remember, some time ago with an administrative working group chaired by Grant Forsyth, did some preliminary work to begin to document procedures that really are, I think, noncontroversial but kind of provide a kind of a guidebook to new councillors, even to task force chairs and members on what are the usual documents they're going to need to refer to constantly, what are the normal ways of operating. There really is probably no reason that that can't be taken up, but it will come down to a question of staffing support to help to codify or to do drafts that then can be agreed to and approved.

>>BRUCE TONKIN: Okay. Any other comments on the GNSO review? Any other -- still an opportunity for anyone from the floor to raise any issue.

>>MAWAKI CHANGO: Yes, Bruce.

>>BRUCE TONKIN: Yes.

>>MAWAKI CHANGO: Yes. I remember someone pointed out -- pointing out to me during the council -- the party, you know, last day, actually it was a board member, that the bylaws require from the board to undertake the various bodies -- a review of the various bodies every three years, but there's no requirement for implementation or to do anything about it. After their review, of course.

So the implementation will depend on the council and also on the public, and I think the report is posted for public comment, so if you guys are willing to make improvements or contribute to the process of implementation of the various recommendations, that will be, I think, useful. Thank you.

>>BRUCE TONKIN: Thank you, Mawaki. And I will point out that I believe the review itself cost about 150,000 U.S. dollars, so it always worries me when there's a lot of money spent on a review but no money spent on the implementing of that review, so we do need to consciously do the implementation as well.

>>AVRI DORIA: Bruce, can I add.

>>BRUCE TONKIN: Yeah.

>>AVRI DORIA: I was just thinking of your analogy of the airplane and making the changes in flight and I guess I wanted to say two things is: One, I believe it is possible. I mean it takes cleverness to do it, and two, I don't want to let a -- have us let that analogy scare us too much. It's not as if people will die if we get something wrong. I mean we have to try and keep it aflight, but I don't want to take it too seriously.

>>BRUCE TONKIN: Well, I'll add to the analogy a little bit. At some point, we do want to land the aircraft, so I'm concerned that we don't want to be circling the airport, so we do need to be focused. We're the operators of the aircraft. We need to be focused on landing it. And other people might be enhancing the audio visual system and making it more entertaining to be on that aircraft, but we still need to get that aircraft to land. So let's not get stuck in a holding pattern.

Okay. The next topic, then, is the work the GNSO is doing on IDNs. The current position of the GNSO Council is that the new gTLD policy applies to new gTLDs that happen to use the IDN standards, as well as gTLDs that are based on the traditional, you know, English script or ASCII domain names.

The -- a lot of the policy principles that we have so far, when we're looking at new gTLDs, we believe, equally apply to TLDs that use IDNs, so things like the string-checking procedure at a high-level policy level, we're not currently seeing any difference there.

In terms of the process for people applying for gTLDs, we're not seeing any difference there. Where I think the difference will come in, though, is in the implementation, and so we've got topics such as, you know, dispute resolution processes and things which are an implementation of the policy. Those implementation processes will need a lot of work to take into account the IDNs. So I think there's a lot of work on the implementation side.

But because we're still not sure that we might have missed something at a policy level, the GNSO has created a working group, and really I guess following some of the recommendations of the GNSO review, this working group is fairly open to participation by the membership of the GNSO more generally, so anybody that is a member of a constituency in the GNSO may join this working group, and we also accept liaisons from advisory committees such as the At-Large Advisory Committee and council members appointed by the Nominating Committee are also welcome to participate.

So I'll encourage anyone that feels that there are policy issues that have not yet been considered to join that working group, and to -- to help identify policy issues, and then what we will do at the council level is consider whether those policy issues that need immediate work, in which case we will establish a policy development process, or whether some of those issues may wait until we get some more experience with -- with introducing new gTLDs more generally.

Are there any questions on the work of the GNSO on IDNs?

>>SOPHIA BEKELE: Bruce.

>>BRUCE TONKIN: Yes, Sophia.

>>SOPHIA BEKELE: The only thing I want to add to that, Bruce, is that I think we need to encourage stakeholders that are working in the field of IDN that are not necessarily associated with ICANN, so that when we're putting out a policy together, we can get more insight, and so that we avoid the ICANN-centric view of things so far, people who have been involved in this organization, so I think it's really important that we get participation and encourage participation from people who have been working in the field for over 6, 7 years. I know folks that are involved, so -- and so far, I think it's not been easy to get into the constituencies. It's my understanding. And I think it's very important we hear the voices of the people. Thank you.

>>BRUCE TONKIN: Thank you for that, Sophia. I guess my starting point would be to encourage any of those communities to join a constituency, and then if they can't join a constituency, for whatever reason, that they then raise that to us, because I think firstly, it would be very interesting to understand where -- where it is impossible to join a constituency. And if so, we probably have the opportunity to appoint them as advisors to a working group.

But let's wait until we've found out that it's impossible -- you know, that there's some issue with joining in the first instance. So I'd encourage them to join the GNSO, because that's the -- the structure we're trying to use to get work done.

>>ROSS RADER: Without being overly pedantic or overdoing this point, Bruce, it may be helpful to clarify who "us" is in terms of getting in touch with "us" and how people get in touch with "us."

>>BRUCE TONKIN: Yes. That's -- that is a very good question, because it's certainly not immediately obvious. Generally, I've been referring people to the GNSO secretariat that have approached me personally, and then help identify what constituency they should contact.

But I think it goes very much to some of the GNSO review recommendations, because I don't think it's obvious what the entry point into ICANN is, and I think sort of trying to staff that in a way that they can come in and say, "Hey, you're type X, you should go and talk to this person who is the constituency Y that's related to your area of interest" -- Marilyn.

>>MARILYN CADE: I guess I'm getting a little bit confused about "us," because I actually thought that participation in ICANN also included the at-large.

>>BRUCE TONKIN: Yes.

>>MARILYN CADE: And I think when we -- so we probably need to be careful, since we're both speaking on the record and speaking to the public that if we have a codeword that means something more broadly to us, we may need to actually clarify that. That there are very broad participation opportunities through the at-large, and I remain very committed to our encouraging and supporting participation through that mechanism as well.

>>BRUCE TONKIN: Yeah. That's right. I think the point I was trying to make, Marilyn, is that Ross is raising the issue that it's not immediately clear. I mean you know what the at-large is. Not necessarily everybody does. And we need kind of a clear entry point into the organization to say, "Hey, I want to participate in ICANN." The staff can sort of say, "Well, you know, answer these questions." And then based on that, point you in the right direction. That's really what I'm getting at. Yeah.

>>MARILYN CADE: It's just that the term "constituency" may not also, for all people, include an awareness of the at-large.

>>MAWAKI CHANGO: Yes, Bruce. Mawaki here. In fact, I was thinking about the same problem as Marilyn just raised, in terms of the individual users, because I believe even ALAC is a structure for a users organization, and I don't know if there are users that are really members -- directly members of ALAC. So I'm not sure if by joining the constituencies before participating in this working group will enable us to cover all the potential -- the potential expertise out there, so -- and the second point is this working group, as you define -- we defined it, is not supposed to conduct policy or to build policy, so -- and the constituency is a GNSO constituency for policy-making, policy recommendation. So is it -- does it really make sense to require the community to join a constituency before being able to join their working group? I'm not sure, because, you know, what I always explain is that the constituency -- is not a given constituency of -- ICANN constituency, but it'!

s a GNSO constituency for the sake of recommending policy to the board.

>>MARILYN CADE: Bruce, I just want to ask a question. It's not that I want to cut this debate off but I'm very cognizant of the fact that this is actually a public forum for others to talk to us and we've gotten into talking to each other, which may be entertaining. As you said, maybe we're improving the audio system. But I don't know if -- we may need to just be sure we are also looking at our agenda and making sure that the public is -- the folks who came here are able to also talk to us.

>>BRUCE TONKIN:Yeah. Well, we're pretty much at the end of our agenda anyway, so -- but I'll take that comment on board, Mawaki, and I think again let's -- let's wait until we have a problem where somebody that is an expert in IDNs feels they can't participate and then deal with that problem, rather than try and create too many rules that may not ever get used, if you like. But I think the comment is valid.

So really we're now at the -- the open mic part of the proceedings this morning, which is where anybody that wants to raise any issue before the GNSO that the community thinks we should be considering is free to do so.

>>SUBBIAH S.: My name is Subbiah, and I represent a company called IDNS.net, and I -- turns out I'm the one who coined the term "IDN" about a decade ago at this point, and my company was instrumental in originally pioneering the concept of IDNs at the time, I recollect -- I recollect 10 years ago that the CEO of ICANN told us to go away because the world could learn English. That actually happened at one of the early ICANN meetings. And about two or three years later, a couple of years later, we had a meeting in ICANN I think 2000, Los Angeles -- Chuck Gomes was there and a number of others, someone in the back who is from -- originally from Neteka Admin, he was there too. Some of us remember this from a long time ago.

So finally we're here. We're talking about introducing IDN gTLDs, which is the way it should be, from -- from the perspective of having helped invent it. That is, that it's both ends of the string are actually multilingual, okay?

I'd like to make two or three points from that perspective. That I think that from the perspective of the gTLD, policy-making for IDN gTLDs, I think one or two or three issues are different from the way it's been done traditionally for ASCII gTLDs, and I'd like to point out why I feel that that's the case.

And I can assure you that -- on a sideline here, that a number of other people who had wanted to participate in this process had difficulty. I know you guys were talking about this. I myself had some difficulty getting into this process of your advisory group. But I guess that will be addressed sooner or later.

But the -- getting back to the point, the TLDs -- today, I think in other discussions at this forum here, it's clear that the -- in the secondary market, domain names have taken on a higher -- much higher value than just the original price that you buy them for. It's clear that ICANN has now also changed, you know, pricing mechanisms. We've talked about that and there's been auctions of dot mobi and so on and so forth. So in general, there is a belief that value is accruing in very large amount to basically domain name real estate, okay? That's something that's happening that makes the process of gTLDs and IDNs, I think, different, okay? As an aside.

Now, the GT -- language is central to people. I mean, I think it's been said that -- you know, Socrates said it, I think, that, you know, the thing that makes us different is language from monkeys. So the culture is central in language. Last night I took the subway. I don't know how many of us took the subway -- you know, I took the subway to Plaza Republica, walked around at night, midnight, you know, checking out prostitutes, blah, blah, blah, right? And the fact is, nobody speaks English out there. You know, so everything that we are making a choice here really reflects on what those people -- how you can benefit those people. Now, getting back to the point is that when -- when gTLDs are issued, the -- if -- three parts to it.

If gTLDs are now issued in such a way that incumbent registries get like dot name, get the equivalent in their own languages and so on, now, that automatically shifts the emphasis of -- of who gets, in a sense, control of defining the language as it's used. You know, for instance, you know, the Arabic group, for instance, for religious reasons may not want, you know, certain words registered. Registration policy. So it's not from the concept of the gTLD that these issues stem from; it stems from the language itself and the culture itself.

Now, if you look around us, today's IDN policy-making day. We're beginning to start this process. There are not too many people from all the several hundred languages in the world. They're just not here, you know. So the -- that doesn't mean they're not interested. And decisions are going to be taken on their behalf, and the -- when the process is open for a gTLD issuing -- and that's what we're talking about, policy-making -- one, I think it's not very constructive to -- to -- to basically allow incumbent registries to get equivalents in all the other languages, straight off, because the rights stem from the language itself. I think from the way people think about it. That's one.

Secondly, if we do issue gTLDs as separate -- you know, without linking them to incumbents to -- open for all, then one cannot expect to set the same standards for a gTLD registry that one sets for large western corporations. It's not possible.

I mean, I see, you know, Sophia there, which is Amharic, you know, or Mawaki, there's Togo. You know, can we expect an Amharic registry representing 20 million Amharic speakers, you know, that has several million dollars setting it up as a big registry coming in and with all the usual requirements? I don't think it's possible. They can't even fly out here, let alone, you know, set up a deposit for it.

So we have to really think in terms of the threshold that we set, you know, and if it these registries fail, well then, you know, that's the level of the people in the language. We have to change in a very different way of how we think about these things.

And since nobody's here from the regions except, you know, some of us -- even I am not really from the region. I speak English too well for that, okay?

So the -- it's -- it's in the conscience, I think, of the people who are sitting in front of me here. They have got to make the decision so that it's made a bit more of a level game for people coming in from the other languages.

If much of the big language registries that we first go out to set up end up in concept space of gTLDs being really kind of western driven and, you know, western kind of registry setting the tone, then it's a real loss and shame to the people in these regions.

And I'm going to wrap up here, which is that so I really think that three things: One, I am not -- I don't think that awarding incumbents all the language equivalents in a registry is a good idea. I mean if there are partnerships with people from the region, that's perfect for those languages. Secondly, I think that the gTLD policy may have to be modified in some extent to allow -- if -- if, say, somebody -- in Hamaric wants to set up a registry, then it has to -- the principal group coming up to ask for that registry must in some way reflect that region, Amharic. You know, it can be partnered with other people from around the world but the people bringing that sponsorship to get that gTLD registry could come from that group some way. If it's Chinese, then China, Taiwan, Hong Kong, somebody. But that's what's got to happen, I think.

And thirdly, the sort of financial bar and the kind of things you set up there for these things have to be revisited because even today in the reseller registrar space, if you look around carefully, there are not too -- you know, it's heavily skewed towards registrars from the western and richer parts of the world. It's only resellers in the poorer part of the world. So the same thing is going to happen here. Anyway, that's my preaching and I'm done.

>>BRUCE TONKIN: Thank you.

>>MARILYN CADE: Bruce, I have a question for him.

>>BRUCE TONKIN: Yeah.

>>MARILYN CADE: Subbiah, could you stay for a minute? I've been giving a lot of those to all three points that you raise but I want to thank you for raising them. But one insight that has come to me and I have spoken several times and will continue to speak about my concerns about registries that fall over and the impact they have on the people who have trusted them enough to build a business on them or commercial or noncommercial communications. But one perhaps insight I had was to go back to my recollection of how John Postel helped to instantiate the adoption of country codes by finding trusted parties who could put together a sustainable commitment to operate a ccTLD registry, often in many of the circumstances I think that you're pointing out to us in the days that these decisions were made. And they were very collaborative efforts and I'm not telling you I've been able to advance my exploration of this concept very far, but it has reignited an interest to me of t!

hinking about how the ingredients may be put together that convey sustainability but also sustain accessibility for smaller startup registries in the specialized areas that I think you're pointing out to us.

The answer is as usual these things are complex. We have to grow up to address the whole world and all the languages in the world. It just happens there are larger languages and smaller languages. As far as the John Postel sort of things, there are lots of smaller ccTLDs that kind of failed and people had to go in and step in and have grown up. We have dealt with them, and we will deal with them in the future, too. The most important thing from the point of view of, I believe, ICANN, the world and everything, that's what I am personally most proud about in my involvement is that we manage to get everybody in the world, even the people in China who had run away and done their own thing or the Arabs who want to do their own thing as we are well aware all follow the same standard. It is just the switch is different but IDNA the standard is the standard and nobody is doing anything different. It is an interoperable world by definition right now. It is just a question of!

who is going to hold the switch or whatever.

That part of it has already been done. So, therefore, the -- if some of the smaller registries that one might find set up in these countries fail, they will only fail to the extent -- sort of an administrative failure. It won't be really very much of a technical failure that will really cause too much of a problem since more or less everybody is on the same page.

In terms of an administrative failure, I think this is something that from a smaller Postel ccTLD point of view, we failed. We have grown up and picked up and we started again.

What is to say large ccTLDs won't fail either -- I'm sorry, gTLDs won't fail either? How many Internet companies survived the bubble? Actually only about ten that made over a billion. Very few survived. The Telcos have bought them now. The reality is I think it is something we can grow to address.

The more critical point is how do you find these groups of people? By sitting in Sao Paulo in this hotel, which is in the middle of nowhere really. It is not Brazil. To walk to the bus stop is a long way from here. In order to find these groups of people, there must be a lot more outreach. They exist. If you went to each country, say, Kazakhstan and you walked in and asked people to set up a registry or a ccTLD, there will be people who are interested. It is just the mechanism is not set up so they can participate. Unfortunately there is outreach.

There are two choices to this. Either you can say we are a global body and anybody who comes up, fine, and it is a free for all and then do the best.

Or to take that analogy further, the airplane analogy, Bruce, is here we have a flight flying over the Amazonus that people down there speak all these languages. We can either make decisions for them or we can make decisions with them. And that's the choice.

And I think IDNA will be here after ten years. IDN is here in some way. We will get there. Whether I was involved in helping invent it originally or others were not, it didn't matter. We probably would have done it. We would probably be here. Eventually they will be there because there is a need. The question is has it been done fairly, has it been done in a way that benefits the people -- these languages in the correct way and that's the stage we are in right now, I think.

So I don't know whether that helps, Marilyn, you, what I am trying to say. Life is a risk. We take it.

>>ROSS RADER: Subbiah, I had a question as well.

>>BRUCE TONKIN: Ross then Sophia.

>>ROSS RADER: Thank you, also, for not listening to the CEO ten years ago and for sticking with it. You mentioned you had some problems participating over the years. Is that still ongoing? Or are you actively involved in the GNSO today?

>>SUBBIAH S.: I think some members of the council recently brought up the issues of difficulties in joining. I know of various groups, some groups that are quite interested that are from different parts of the world who wanted to participate in this working group when they first heard about this policy working group. And they had a lot of difficulty joining the group because it turned out there were some questions about the rules or something and then there was a question of joining the constituencies. There is no IDN constituency. There is all kinds of conceptual constituencies, but there is no language constituency of such. Language constituency as such by definition today it is just the ccTLD group.

But as we all know there is a dot U.S. and there is a dot ASCII gTLD. Why shouldn't the same things exist in other languages?

There is a distinction. But from a language perspective, almost all the language people are all in the ccTLD side of things.

So I heard there was a difficulty in figuring out how to, and it appears the act of joining some of the constituencies is not so easy as it appears.

>>ROSS RADER: Has this been resolved for you?

>>SUBBIAH S.: As far as I know -- a few people I know, there may be others, I don't know, maybe Sophia or some of the other people who just talked about now may know. But of the couple of people I know, it hasn't been resolved yet. I believe they believe they will get there, but it hasn't resolved yet.

>>ROSS RADER: Okay. Thank you.

>>BRUCE TONKIN: Sophia.

>>SOPHIA BEKELE: Thank you, Subbiah. Maybe I am not finished with that. Thanks for this insightful perspective, first of all. I am sorry you had difficulty joining. I am sure we will work on it and I am glad you brought it up.

But I just want to say, since you used my language as an example, I am more touched now.

But I think you are right about language being emotional to the people. And I think we need to be sensitive when we are in this working group when we are talking about issues developing the policies around IDN.

I think what you are recently saying is we have to create a level playing field between the locals who are actually users of language as well as the western companies who probably would be joint partners with the locals.

One other good example that comes to mind, for example, is sort of dot Asia, dot Africa or dot Latin America. It is sort of a concept that the people own and the culture owns the space, and it could be a collaboration with any other western companies that has, perhaps, the financial muscle or the expertise. I hear you when you say that, and I think maybe just correct me if I am wrong, if that's the concept that you were just saying.

>>SUBBIAH S.: I think so. Otherwise, we risk the danger. If you look to a couple of groups that have actually -- about a quarter of the truly IDN-needy world, by "IDN needy" I mean -- sort of Spanish or Portuguese probably isn't that IDN needy. Something like Hamaric, Chinese is IDN needy.

From the perspective of a truly IDN-needy Internet user group in the world today, I would say a good quarter or maybe up to a half are represented by just two groups, Chinese Internet users and the Arabics. Both have -- we all know we have been -- we have kept in touch with the press and we know that both groups, in the case of the Arabic -- about a couple of years ago when I believe the Polish ccTLDs submitted a table -- language table -- IDN language table, they were one of the first to submit. And they submitted for Hebrew and Arabic. They included Hebrew and Arabic. The Arabic community went berserk. They were very upset. Ultimately within a few weeks, the Arab League of Ministers which is 22 Arab countries, doesn't get more significant that the Arab League of Ministers put out a communique that was published all over the Arabic newspapers. They make decisions, or Arabic people make decisions.

The people are making these statements and the Chinese have also brought it to their feet. They have started doing things on their own. Why? Because they feel they have ownership of some kind of language.

Why are people doing this? Because they feel that attachment to their own language and they feel they should have some control over it, I think you can't run away from that and anything we do has to take that into account. If we don't -- I don't know if people take it so seriously.

>>SOPHIA BEKELE: Thanks, Subbiah. I think I would encourage Subbiah to join the working group because he seems to have the institutional memory with ICANN as well as the industry memory. So I would encourage you to join. Thank you.

>>BRUCE TONKIN: Thank you, Sophia. Michael?

>>MICHAEL PALAGE: Thank you. My statement goes to the original comment by Mawaki about participation within the GNSO and builds upon the comments from the previous speaker, Sophia, about obstacles in meaningfully participating in the ICANN process. My question to the council -- but before the question, Bruce, I agree with you, before undertaking a study of, if you will, obstacles and participating, you need to see if there is, in fact, a problem. Again, the council and ICANN has limited resources.

I guess my question to the council is, are any council members aware of applicants that have tried to join a constituency and have, in fact, been denied? I think this would be a good question, if we could acknowledge with the leadership here of any people that have been denied, that may identify if a problem exists or not.

>>MARILYN CADE: I have a comment -- I have a point of order about this, really. The council does not approve constituencies. The board does.

>>BRUCE TONKIN:That wasn't Michael's question. Michael's question was have any constituencies rejected an application for membership? At least from registrars, the basic definition is if they are on the ICANN Web site as being an accredited registrar, if they haven't been, they probably have been refused. I don't have personal knowledge of that. But there is essentially a white list. You are either on that white list or you are not.

>>MARILYN CADE: Philip may want to speak as well, but the commercial and business user constituencies have requirements for membership. So if you don't meet those requirements, then you may be refused.

>>MICHAEL PALAGE: I guess my question, Philip and Marilyn, would you be able to make available for the community those people that have applied and been denied access?

>>MARILYN CADE: I don't think so, Michael. There are privacy issues related to disclosure of information unless somebody wants to make that available. Let me ask the question more broadly. Let's not target a single constituency. Why don't we hear from all the constituencies whether they have rules of membership. That might be helpful for the community to know.

>>MICHAEL PALAGE: I guess, Marilyn, I would sort of -- I guess the question I would ask of all constituencies, have members been denied?

>>SOPHIA BEKELE: Michael, I have a comment on that. As far as the working group for IDN when we put it together, yes, there are few people who have come to me and said they were not -- they are having a very hard time being accepted by the constituencies, and people were calling actually their country homes and asking them why they are interested to participate and what would be their basis.

So their eligibility requirement was not established by whoever is accepting and people were very, very disappointed and they have sent e-mails to me directly. Thank you.

>>MICHAEL PALAGE: I guess if I can, Marilyn, just to follow up on one of your statements regarding privacy, I believe you and I believe in an open and transparent ICANN. I believe that's something we both share. And I guess I struggle with how you would be able to deny statistics of people being denied participation and how you reconcile that with ICANN's bylaws who preach about openness and transparency.

>>MARILYN CADE: Mike, thanks for your clarification. You are looking for statistics. I am sure statistics can be provided. Let's be careful here not to target a single constituency. So the question really needs to be asked of all constituencies, do you have membership guidelines and have you had situations where you have had to deny people because they don't meet those guidelines?

Let's just take, for example, the idea of suppliers who only supply to registries and registrars and consider whether they are eligible to join the registry and registrar constituency. We could take an example -- pardon me for using the term here, but maybe registries in waiving, entities who have declared their only purpose is to become a registry applicant. Can they presently join and participate in the registry constituency?

I would not put myself in the position of criticizing another constituency about their rules. I am just suggesting that we should ask the question of do constituencies have membership requirements and are they identifying an unmet need or a large category of entities who can't participate in the constituency process.

Then we should also ask ourselves how does the at-large help to fill a void if there is one?

>>MAWAKI CHANGO: I would like to -- sorry -- address your question directly talking about my own constituency. I don't intend to criticize anyone. We had denied a request for membership because it is difficult sometimes to appreciate based on paperwork what exactly they the organization or entity behind application represents.

But it appears it is clearly legitimate entity. But the points for some of the executive members who made the decision was that they might be better joining the ALAC instead of non-commercial user constituency. I don't know exactly because I am not an executive committee member.

But the thing is ALAC is not invited to join the working group, for example. So that person wanting to join the constituency, the NCOC, in order to be able to participate in the IGN process can do that, even if they join the ALAC at this point in time.

>>ROSS RADER: If I could ask a question as well.

>>BRUCE TONKIN: I am concern we are having a detailed debate about one issue. So the general issue, as I understood it, is that there are some difficulties that people have joining a constituency. Let's capture that off line, and there are a number of ways dealing with that, including in the bylaws to create a new constituency. But starting a debate about who joined what constituency I don't think is useful.

Final comment on it and then I would like to hear from more people.

>>ROSS RADER: I had a question as well.

>>BRUCE TONKIN: Question, yeah. What was that, Ross?

>>KEN STUBBS: I will wait to Ross' question and then I will follow up.

>>ROSS RADER: I didn't like it when Subbiah walked away from the Mike because I am not sure we will hear from him begin unless he is brave enough to come up in another public forum so I want to deal with the specific question that you raised, Mike. Are you aware of any specific parties that have been denied access that you -- that they believe they should be involved in this process? Like, are there specific cases -- this question is for Michael. Are there specific instances that are outstanding right now that the counts or constituency should be dealing with more effectively? Or is this a general --

>>MICHAEL PALAGE: I think, Ross, one of the things I think we talked about this in Fort Lauderdale. When you look at the, if you will, the secondary reseller market that do not neatly fit into the registrar, the registry constituencies, people like CITO, these are multi-million dollars a year organizations that definitely have a vested interest in what ICANN does and what policies it passes. And trying to find a place for them in the ICANN family, I think, is very important.

So I guess that, if you will, follows up part of the concern. So I guess that's my specific concern.

>>ROSS RADER: It is not like we have six registrars out in the hallway that have been denied access to the registrar constituency or six non-commercial users that have been denied?

>>MICHAEL PALAGE: No. As I said, the reason I raise these concerns, again, what can we do to make this as inclusive a process as possible and bring as many voices to the table or marketplace.

>>ROSS RADER: Fair. Thank you.

>>BRUCE TONKIN: Ken, final comment on this topic and then we will move on to another topic, the purpose is public feedback here, not debating a particular case.

>>KEN STUBBS: Thank you, Bruce. I am hoping that as we move forward in dealing with the LSE report and dealing with the issues that Patrick Sharry brought up in his report, questions like this will be asked and answers will be required and evasiveness will not be tolerated by any constituency.

I think it is I can dreamily important to remember the constituency system was set up, my gosh, we are going on eight or nine years ago, that the one thing we have to keep our eye on is making sure that any constituency operates in accordance with the ideals that were originally embedded in the ICANN bylaws and mission statements.

>>BRUCE TONKIN: Thank you, Ken. Amadeu.

>>AMADEU ABRIL i ABRIL: Good morning. First of all, when you are doing this review of how the GNSO is working, which is needed, don't fustigate too much yourself. It is becoming better and better, right. I have the dubious honor to have chaired the most ridiculous DNSO Names Council ever in Santiago, Chile and it is a completely different world. One of the advantages of the GNSO public forum is getting more and more involvement, even if we have still some remaining issues, one of them being, for example, this question about task forces and constituencies. I remember when I was sitting there as a noncom, it was very difficult to get involved in task forces if you don't come from any of the given constituencies, even sitting there in the GNSO Council, because of the bylaws.

So we have a problem here.

The second one is, you know, when you are asking what are the difficulties in your involvement, there is only one: Time and lack of understanding, more than anything else. It is not, you know, legal barriers but this structural barrier. If you are lucky enough to be in a constituency list, we have registries, registrars, ISPs, whatever, you probably know more or less what is happening. If you are not and you try to see what's going on, you are completely lost. One of the things that should be improved, perhaps, is a more structured way in a more chronological way of presenting what is the current status of the different issues, because, quite frankly, I have difficulties myself -- I am not exactly an outsider -- in knowing where we are in each of the topics. Second one is that if you are not in any of the constituencies, you don't even know who to address and how and where when you have a given concern, as was mentioned, IDNs or whatever.

So I am not suggesting that the GA as we knew it should be revived, would have nothing against. Perhaps we need a more general discussion forum that tells things to the outside world, not only to the people that are already in one constituency.

And one of the specific examples I will give regarding that is that, I was involved in preparing the .cat application. The only language-specific application TLD that already exists, working and involved with dealing with language community. And we had three years for doing that so it was intensive and we got them more. And it is difficult to explain them lots of things. Then you learn a lot about languages, linguistics and how it works. I describe lots of problems we have here with IDNs and other things that don't take into account the many linguistic realities.

I try to find people who are interested in participating here. And, for instance, there is one consortium name, which lingual (inaudible), house of languages anyway, that they would like, for instance, contributing the language tables with a network of languages specialists in all linguistic carriers in the world. The language tables for all the main -- the main? The most written, because this is what is probably used languages in the world were just the ones that are 6039-1, 1 and 2. Some 200 languages don't have the language tables, and probably the registries for economic reasons will never be able to do.

The problem is how they work with ICANN. How they get involved with and where, if they don't come from any given constituency, who they are going to address? I am not saying -- I am not presenting here, you know, a complaint in the sense that they have refused in any sense. This is not the case because it hasn't happened.

What I am saying it is very difficult from the outside to know where you get involved in all of the issues unless you are a real insider within the GNSO, for instance.

>>BRUCE TONKIN: Thank you, Amadeu. George, and final comment before we move into the GNSO council meeting. Go ahead, Georgia.

>>GEORGE SADOWSKY: I'm George Sadowsky. I am representing myself here. Change of topic. I would like to address the issue of the gTLD space evolution. To put this in context, yesterday I was perplexed a little bit disturbed and concerned about the emphasis of the discussion on the new gTLD choices.

Let me put this in context. Some of you know that I worked for the United Nations for 13 years. And in some of our more cynical moments, we used to say that process was our most important product. If you don't understand that, that's a joke. You need to know that general Electric corporation, a U.S. corporation, had a slogan that said "progress is our most important product." So we were essentially denying that we were making progress by making that statement.

In the discussion of the gTLD space, what I detected was that the method of obtaining new gTLDs to add was essentially reactive. That is that there was a policy put into place to judge new proposals and depending upon the proposal and its acceptability that it would be included in the space. It seemed for more reactive than proactive and the discussion seemed to be all about process and not about end state. Now, clearly, the concept of end state in the Internet is not a static concept but it could be said that potentially ICANN might be concerned about the way in which the state of the gTLD space evolves and what it should have in it.

And my question to the GNSO is, is there any sense that this evolution of the gTLD space has a component which might be considered in the international public interest and to what extent do the policies that are in place now recognize that if, in fact, that's the case and to what extent do they support it.

>>BRUCE TONKIN: I think what we will do is take the question on notice. I will say a number of these topics that have been raised first by Subbiah regarding the, I guess, equitable treatment from people who they don't have a lot of resources and we need to make sure the process can accommodate that. There has also been a lot of discussion about new gTLDs and it pretty much goes back over ten years. That's not a new thing about which TLDs should there be and who decides. I guess the general position has been -- because the two things are very related, I think, because if it is us that are going to decide what the new gTLDs us and "us" being us all at the table that speak English and probably have a similar value system, that's kind of a top-down approach.

I guess the philosophy that is being taken, we are taking a bottom-up approach. We are allowing the Internet community more generally to say what TLD do they believe they need for their needs, whatever their needs is, not prejudge it but basically have some objective criteria that's consistent with ICANN's mission.

That's the approach. And I agree a totally alternative approach is to say rather than having bottom-up proposals, we will start from the top down and decide what those TLDs are.

You run into very similar issues, do we have enough participation in that process to decide what these TLDs are?

So either way you have a participation issue, either if you are going bottom up you have enough opportunity for those to fulfill the need who need a new TLD and bring it up through the system. We publicize it enough and we don't rely on those who read the GNSO Web site or the ICANN Web site to know about it. If we are going to go top down, the same thing applies. In that top-down process, are we getting enough broad input in making the decision. They are two very different approaches and they are probably equally valid and the process we have approached is more the bottom-up approach. I hope that helps answer your question.

It is not something that hasn't been debated. That's all I can say. It has been debated for years in this community.

>>GEORGE SADOWSKY: I was mentioning this with someone last night and they suggested that one of the reasons there was a dependence upon process here was that there was an inability to agree on the end state and therefore the process was an easier thing to agree upon and whatever the process produced would be the way in which the gTLD space evolved. Would anybody like to react to that?

>>MARILYN CADE: George --

>>BRUCE TONKIN: Marilyn and then Philip.

>>MARILYN CADE: I be incredibly brave and hopefully Bruce will cut me off in a minute and we will go to a different meeting. I think the question of whether or not the council should be trying to define the end state is a question that I am not going to accept as an assignment.

I am going to accept as an assignment the opportunity as with other ICANN stakeholders to discuss whether it is either appropriate or possible to define an end state.

I don't think, however, when we broadly invented the technology that is now called the Internet we envisioned the world we're in today. I wouldn't have been able to have defined an end state for the Internet then, and I'm not sure I could define an end state for the Internet where I would like it to go.

I could, I think, identify principles.

>>PHILIP SHEPPARD: Just for the record, it is probably worth stating that although you might have heard me present yesterday talking about selection criteria, I was, of course, presenting at that time on behalf of the entire committee but certainly, it is probably fair to say the BC along with other user-based constituencies has all along had a vision in terms of shaping the space in a different way and it is fair to say that that vision has been essentially outvoted in terms of the process, and that's the end point we get to today.

You are not alone in thinking of that type of shape that may be useful.

>>BRUCE TONKIN: Ken Stubbs.

>>KEN STUBBS: I don't want to comment on this specific topic but I wanted to make a comment before George sat down again, so if I could. I will give anyone else a chance who wants to respond.

>>BRUCE TONKIN: Does anyone else want to respond to George's question? Okay, go ahead, Ken.

>>KEN STUBBS: I would like to take a half a second here to publicly recognize George and the work the Nominating Committee. George stepped into the bridge as a member of the Nominating Committee, I can tell you, at a critical time and took over as the chairman of the Nominating Committee, did an outstanding job and committed a significant amount of his time and energies to making the process work as effectively as possible.

As a member of the Nominating Committee, I know there are other members in the audience here, I can assure you that we have nothing but the highest respect for George and the ideals he brought to the table. And I just think it is important for the community to recognize that there are people out there that are really working to make this work. Thank you.

>>MAWAKI CHANGO: George, maybe your experience with the U.S. processes were helpful.

>>BRUCE TONKIN: Okay. At this point then I will close the GNSO public forum and have a break for five minutes before we start the GNSO council meeting.

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