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ICANN Board Meeting in Shanghai Real-Time Captioning

31 October 2002

Note: The following is the output of the real-time captioning taken during the ICANN Board Meeting held 31 October 2002 in Shanghai, China. 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.


ICANN Board Meeting
Shanghai, China
Thursday, 31 October 2002
Board Meeting

Contents:

Morning Session

Agenda

Evolution and Reform

Afternoon Session

Internationalized Domain Names

Executive Search Committee

Wait-Listing Service

Final Approval of LACNIC

Privacy Working Group

Re-Thank-You to Paul Twomey

Thanks to Herbert Vitzthum

Thanks to Meeting Hosts, Sponsors, Etc.

Board Assessment

Other Discussion

Proceedings:

Morning Session

(Proceedings begin at 08:41 a.m. local time.)

Vinton Cerf: Okay. Looks like we have all of the Board members present. Where is Alejandro? I....

Stuart Lynn: Right outside.

Vinton Cerf: He keeps floating in and out like a ghost.

All right. Well, I think we'll start anyway.

All right. Let me convene the Shanghai meeting of the ICANN Board. Welcome, everyone. It's October 31st, and we have a moderate agenda for today. But it's certainly ambitious, because we are going to go over the new bylaws that will implement the Evolution and Reform Committee's recommendations.

Agenda

Vinton Cerf: We also have – actually, in deference to brother Schink, I have a first item on the agenda, which is agenda-bashing. So the first question I have is if there is any modification anyone wishes to make to the agenda. We have the evolution and reform bylaws discussion. We have a discussion on internationalized domain names and the committee activity associated with that. We have an action item with regard to the CEO search. We have an action item with regard to a letter that ICANN has received from VeriSign. We have a proclamation, formal proclamation to make about the LACNIC initiation. We have our traditional formal thanks to our local hosts

We have a new item on the agenda called "new business."

And (feedback) –

Okay. I hope that that was a temporary effect.

And then I will invite the Board to add items to the new business part of the agenda when we get there.

So the first question is whether any other Board member wishes to make any changes to that agenda.

Okay. Amadeu.

Amadeu Abril i Abril: Not simply – perhaps we have some things that we could discuss at the end. But I don't know whether you think we should bring them up right now or wait for that part of the agenda.

Vinton Cerf: I'm happy to wait until we get to the end of the formal agenda and then we'll put things on as you see fit.

Evolution and Reform

Vinton Cerf: Let me start with the evolution and reform discussion.

We have made a moderate number of changes to the October 23 draft of the bylaws. The origins of these changes are, in large measure, a consequence of discussions that were held yesterday and other communications that we have received from the community, including the GAC recommendations that we heard yesterday, also recommendations coming from the ALAC and other sources.

So I have asked Louis Touton if he would walk through a red-line version of the draft bylaws so that the Board can see, and the rest of the participants can see the changes from October 23 to the present.

And we can talk about those changes and see whether the Board approves them.

So we need to get the draft bylaw red-line up on the screen, if we can.

Yes, Andy.

Andy Mueller-Maguhn: I still – before we get to the details of the rse, I still see the concerns that were also raised in the internal Board meeting that we don't seem to be in support of the ccTLDs and the RIRs with its work. Maybe we can take two minutes here also that other Board members can make comments or suggestions on that issue.

Vinton Cerf: Andy, what I would prefer to do is to go through the bylaws, make sure that we have an understanding of those changes. You will see in the bylaws that there are placeholders where there is still work to be done developing the relationships with these other parts of our ICANN organization. But I would rather – I accept your point. I don't want to lose it. But I prefer to go through the bylaws now and get that out of the way, and then we'll deal with any other discussions regarding those two bodies after we finish that.

So, Louis, let's begin. First of all, we changed the date of the draft to today.

So if we could scroll down.

Louis Touton: All right. Where's my microphone?

Just a moment, Vint.

Vinton Cerf: We're having a problem. We're missing a mouse. Okay.

Louis Touton: No, no, a microphone.

Vinton Cerf: Oh, microphone. Aha.

Louis Touton: Just a moment here.

Okay.

Vinton Cerf: Ivan, in case you're wondering and anyone else is listening in Internet land, we're trying to arrange things so that Louis can be heard as we walk through the modified agenda – modified bylaws.

Okay. So we've just moved Louis to the stage at the lectern.

Ivan, you should have an e-mail with this modified version of the bylaws in it.

Could we just confirm, Louis, that Ivan is on the call still? Ivan, are you there?

John Crain: He was on the call.

Ivan Moura Campos: Hello.

Louis Touton: Is that you, Ivan?

Ivan Moura Campos: Yeah, that's me.

Vinton Cerf: Okay. Thank you. Just double-checking.

All right, Louis is now on the stage, and we have up on the screen the edited bylaws.

So, Louis, let's walk through the changes.

Louis Touton: Yes. And just for the Board members' information, Stuart is right now circulating a copy of the resolutions, but we're focusing right now on the bylaws. And John will step through.

What this document is, is it's a red-line showing changes from the October 23rd version which was posted and discussed yesterday.

As Vint said, the first change is simply to change the date of the draft. And if John will arrow forward to the next change.

Okay. Hold on.

Amadeu Abril i Abril: (Inaudible.)

Louis Touton: Okay, John, could you make the on-screen text a little larger?

Steve, do we have a portable microphone?

Steve Conte: Yes, we do.

Louis Touton: Let me go back there, it's a little easier to manage.

Andy can explain this one.

Andy Mueller-Maguhn: So to explain the reason why this was changed, I had the idea, I think it very important, because I missed in the work of the Evolution and Reform Committee the – looking at the structure of CEO and staff as well, the ERC mostly looked at the structure of ICANN and the Board, but not on the performance and the compatibility of staff and CEO work with the policy adopted by the Board brought from the structure.

So, originally, I wanted to have here "in performing its mission, the following core values should go at the decisions of the ICANN Board of Directors, the Board, the work of ICANN CEO, and staff," and so on.

And we agreed that it would be more easy to have it saying here "guide the decisions and actions of ICANN," which, of course, includes CEO and staff.

Vinton Cerf: Not only does it include CEO and staff, but it, essentially, includes all of our activities. And so I think that – that formulation, Andy, is far more comprehensive and more in line with our intent for the core values. So I thank you for making that recommendation.

Let's move on, Louis.

Louis Touton: All right.

Okay. The next change is in the –

Andy Mueller-Maguhn: Sorry. I got one in between, or I wish one in between. Because you already stepped to Section 6. Now could you please go back to Section 2.

Louis Touton: Vint, I was going through the changes in the draft, and Andy is wanting to know whether to go through –

Vinton Cerf: I would like to go through the changes, if we could. What is it about Section 2?

Stuart Lynn: Mr. Chairman, can I make a proposal that I think would ease this?

That Louis go through the changes in the draft. At some point, a motion is put on the table with this set of written changes and so forth. And any member of the Board who wants to suggest amendments do that by proposing an amendment with their specific requested change. That's the normal parliamentary way of addressing changes in something of this kind.

Vinton Cerf: That's fine.

What we're doing, we have a document that we are going to start with. So let's go through that. Hang on to the Section 2 modification.

Stuart, I appreciate the suggestion.

So let's go on now to Section 6.

Louis Touton: Okay. It's Article III on transparency, Section 6. On the length of time that items are posted on the web site that are policies considered for adoption that substantially affect the operation of Internet or third parties, propose to extend the proposed 14 days to 21 days in view of comments in the public forum yesterday.

The next change is also in Section 6 of Article III, specifically, 6.1.c. And this is a change prompted by some comments provided by the Governmental Advisory Committee. And you can see the language there that it relates only to those policies affecting public policy concerns and stating that the opinion of the Governmental Advisory Committee will be sought and taken duly – and any response that's timely received from the GAC will be duly taken into account by the Board.

I'll move to the next one, unless someone wants to interrupt with questions.

Vinton Cerf: Let's move on.

Louis Touton: Next –

(From audience): may we have it bigger on the screen? Because we can't read that.

(From audience): I wanted to ask to make it a little bit bigger.

Louis Touton: Okay. Hold on.

Try this.

Vinton Cerf: Ivan, for your information, we're simply blowing up the text on the screen so people can see it here.

Louis Touton: Okay.

Ivan Moura Campos: I'm following on my own text here, trying to.

Louis Touton: Okay. The next change is in Article IV, Section 2, regarding reconsideration. And this is a clarification point that we got from a comment, just that not only natural persons, that is, human beings, but also entities could seek reconsideration. And there are a series of words changed to implement that.

The next change is in the same Section but part 5.a, which had provided that the time limit for reconsideration requests was 30 days after the sooner of information about a challenged Board action being made public in a public meeting, or by a published report.

We have – in response, again, to a comment – changed it to be directed – to be measured only in terms of the public report, the written report, to avoid disadvantaging those who might not attend ICANN Board meetings.

And then also in 5.c, again, response to an editorial comment that the word "necessary" didn't have any particular meaning and might be confusing, so it was removed.

Also in the reconsideration Section, part 6.h, just to make clear that in presenting a reconsideration request, a part – about an action of the Board or inaction of the Board, the party seeking reconsideration should explain why information – that there was information not considered by the Board, and if it was not presented to the Board, the reasons why the party making the request didn't submit it to the Board in time for it to be considered in the first place.

Vinton Cerf: I'm sorry, the – I'm actually confused about that one.

Would you go back.

Louis Touton: Okay.

Vinton Cerf: What is the circumstance that this paragraph is trying to deal with?

Louis Touton: Okay. This paragraph deals with the materials that one is required to provide with a reconsideration request.

One of the grounds for reconsideration request in the earlier bylaws related to Board action without full information.

And this merely says at the tail end that in your request, if the information wasn't presented to the Board, the party making the request should state the reasons why it did not provide it to the Board before the Board acted to prevent what's known perhaps in American vernacular as sand-bagging.

Vinton Cerf: Okay. I understand.

Louis Touton: Yes.

Also in the reconsideration Article, Section – and part 9, specifically, to make clear that reconsideration requests are post- – or reconsideration committee determinations as to whether to decline or proceed to consider a reconsideration request are posted on the web site. And that's just language there to make clear what was the intention but wasn't expressly stated.

Next one is – next two are strictly editorial.

Also the reconsideration Section 17, again, a clarification point to make clear that what's posted on the web site is the final recommendation of the reconsideration committee.

And reconsideration, again, in Section 19, which deals generally with reports that the reconsideration committee is required annually to make their series of just clarification changes in terms of the – what's reported for what period. And, basically, it's done on a calendar-year basis. And you can see a repeated set of editorial changes to clarify that, which was pretty muddy in the 23rd October bylaws.

In item f of this, there's just more of a clarification that one of the elements is for reconsideration requests that were denied, what is being sought by this particular item is an explanation of any other mechanism, such as independent review, ombudsman, and so forth, that were available, so that the Board can assess based on the annual report whether the reconsideration policy in connection with the other review policies that ICANN has in place are comprehensive.

And addition of a Section that – 20, so that the annual reporting is also supplemented by aggregate information from the beginning of the time of the – these bylaws.

Now moving to independent review, which is Article IV, Section 3, the changing of decisions to declaration in several places in part 12 is just for precision because it was previously referred to as a declaration of the independent review panel.

And in 15, where feasible, the Board shall consider an IRP declaration at the Board's next meeting, and see how to address it.

I should talk a little to the point of what "where feasible" specifically means here is, in the bylaws, there are a number of consultation requirements, for example, with supporting organizations and the Governmental Advisory Committee. And it may be that if an independent review declaration concerns a matter of policy, a decision of policy, that those consultations would have to be – to go forward before the Board could consider the independent review declaration.

So –

Vinton Cerf: Sorry. Just for clarification, Louis, so the point here is simply that we would deal with any IRP declaration as soon as we could, at the next Board meeting, unless there were other actions required to process that – the action of the independent review panel?

Louis Touton: Yes.

Okay.

Down in Section 4 on – I guess Article IV, Section 4, periodic review, a couple of changes requested by the Governmental Advisory Committee in their document yesterday.

Just to make clear that in the case of the Governmental Advisory Committee, these will be done on a – by the committee itself.

I note here that, just editorially, it says GAC.

It actually should be spelled out Governmental Advisory Committee, and I'll fix that in a bit.

In Article VI, Section 5 on international representation, this is generally the Article about the Board.

And what's been done here is simply to emphasize that not only geographic diversity but functional diversity is a valued component, and this is to make it consistent with other parts of the bylaws, including the core values.

Now we're off to, again, Article – the Board article, Article VI, Section 9 in talking about nonvoting liaisons.

The Governmental Advisory Committee requested that some words about the establishment of the Governmental Advisory Committee's section in the bylaws be removed, and that's been done.

A Section was added in response to a public comment to make clear that nonvoting liaisons are not compensated but instead act as volunteers without compensation, other than, of course, like Board members, they can receive reimbursement of certain expenses.

In response – and finally, in this Section 9 of Article V, the Governmental Advisory Committee prompted this change, and basically makes clear that liaisons, in order to effectively accomplish their acts as liaisons, are expected to share and consult with their respective committees or organizations from whence they come, but with respect to confidential documents and so forth, the Board can establish the conditions that may be appropriate in handling those.

That was consistent with the comments of Dr. Twomey yesterday.

In Article V, Section 13, the timing of the annual meeting – this was actually one of – a lawyer-inspired comment, was changed to make it just in the fourth quarter of the calendar year rather than in the specific weeks of specific months for some technical timing reasons.

There were some issues that appeared that the former language might present.

We're now down into Article VII which is about the nominating committee.

There are a couple of changes that have the effect of changing the Governmental Advisory Committee's contribution to the nominating committee from a voting delegate to a nonvoting liaison, and that's what this is about in Section 2, sub 5.

Also in Section – still in Section 2 which is about the composition of the nominating committee, sub 8.g, slight rewording.

It previously said one delegate to the nominating committee will be designated to the Board to represent academic or other public organizations, and based on a comment that we received, it changed it to academic and similar organizations, because first of all, not all academic organizations are public, and secondly, just "other public" was broader than intended and probably unclear because of different meanings of the word "public," particularly in different parts of the world.

Down here, the deletion of "k" is just associated with changing the Governmental Advisory Committee's representation on the nominating committee from a voting delegate to a nonvoting liaison.

Generally on diversity to guide the nominating committee, as well as its selection for the Board and otherwise, the tail end of the Section 5 has been changed to point to core value 4 about diversity rather than the particular things that were highlighted here.

And this was just for technical reasons to make it consistent in what kinds of diversity the bylaws are seeking to promote.

Section 6 and 7 regarding the nominating committee have been added to provide administrative and operational support, and to enable the nominating committee to establish procedures as deemed necessary, which will be published on the ICANN web site Article VIII concerns the address supporting organization.

As stated in the October 23rd bylaws, it was essentially, with a couple of judgments, the same as in the present bylaws.

There are ongoing discussions with the regional Internet registries regarding the content of this in the future and that's been accommodated by inserting the bracketed item "subject to continuing discussion" at the beginning of Article VIII.

There's actually not a change at all there; okay.

Clarification down in Article X on the generic name supporting organization, Section 4, just to make clear that the prohibition on travel – reimbursement of travel expenses was for GNSO participants.

The reason for this change was to avoid the inference that ICANN was supposed to provide administrative and operational support and then not be able to send staff members – provide that administrative and operational support to GNSO meetings.

So just to remove an internal inconsistency that was raised by a comment.

Again, Article X, Section 5 on constituencies, part 3, there was extensive public comment yesterday, overwhelming public comment, that the proposal to limit participation in constituencies to each person or entity participating only in a single constituency was inappropriate, and based on that comment, in this draft that's been changed to revert back to the present provision that states more or less the opposite rule that no individual or entity can be excluded from participation in a constituency merely because that individual or entity is participating in another constituency.

Now we're getting down to Article XI-A, Section 2 on advisory committees and these are in the main perhaps prompted by suggested by the Governmental Advisory Committee in its document yesterday.

As you can see in Section 2.1.b, there's an elimination of the ability of the ICANN Board to designate governmental organizations and treaty organizations to the Governmental Advisory Committee.

Instead, that's a function reserved to the GAC itself through its chair.

Vinton Cerf: Excuse me, Louis.

It's worth pointing out, the only reason that text was in there was at the very beginning of ICANN's formation there was no GAC and so the Board had to create it.

And so it needed to make those invitations itself; but now that we have a GAC with a structure and an organizational set of procedures, it doesn't need for ICANN Board to invite people to join the GAC.

The GAC can do that, and that's why this text is being struck out.

Louis Touton: Okay.

Moving on again to Section 2.1.c, in addition, at the Governmental Advisory Committee's request, this change enables the GAC to adopt its own charter and internal operating principles.

Previously it just said operating principles and procedures.

There were a series of changes removing the phrase "from time to time" because the Governmental Advisory Committee members viewed them, as I understood, overly legalistic, and those have been made.

In "h" here, again, these are requests of the Governmental Advisory Committee for a consultation mechanism, about taking duly into account any timely response.

First, notifying the chair of the GAC, and then taking into account any timely response in the activity.

"i," "j," "k" are new items requested by the Governmental Advisory Committee, and just to summarize them briefly, "i" makes clear what is probably already the case in bylaws, but that the Governmental Advisory Committee can act on its own initiative or at the request of the Board.

"j," stating that the advice of the Governmental Advisory Committee, both in the formulation of policies at the supporting organization or advisory committee level, and in the adoption of policies at the Board level shall be taken duly into account, and that in the event that the ICANN Board determines to take an action that's not consistent with the GAC advice, it will inform the GAC and state why not, and then there will be a conciliation procedure.

And finally, in "k," if you can't find a solution, the ICANN Board will again state its reasons and the will be without prejudice to rights or obligations falling within the GAC responsibilities.

We now have a couple of changes and a renumbering that's apparently needed.

In the Article XI, I guess it's Section 2 about the At-Large Advisory Committee, providing that the At-Large Advisory Committee may designate a nonvoting liaison to the GNSO council, there were a variety of comments generally in this regard.

And in looking at them, this is one that appeared to be clearly safe to do.

Vinton Cerf: I'm sorry; let's go back to that.

The point about that, the only reason for referring to the Transition Article is simply to take into account that during the period of transition to these bylaws, the At-Large Advisory Committee may have a great many things on its plate to deal with and doesn't necessarily need to have liaisons at GNSO or elsewhere.

So the point here is simply to make sure that in the steady state after the transitions have occurred to the new bylaws, that the At-Large Advisory Committee does have the power to have a liaison, nonvoting liaison on the GNSO council, but during the period of transition, that's an open question.

Louis Touton: Yes, that's correct. And just to underscore, if you go through the sections on the At-Large Advisory Committee, one sees a lot of things to be done, including nurturing the creation of at-large regional organization.

Vinton Cerf: RALO means regional at-large organization?

Louis Touton: Yes.

And there are ultimately to be five of those, one in each region.

Okay.

Now we're to Article XI-A concerning external expert advice.

At the GAC's request, this has been renamed, though, in slightly a different fashion than suggested.

In Section 1, rewording of purpose, that was really to make it more readable and not intended to have any effect on the meaning.

In Section – Section 1, part 2, types of expert advisory panels, just making clear that to the extent a non-international organization type expert advisory panel deals with concerns of public policy, the provisions of the international organization, or some of the provisions, the international organization provisions would apply

In subsection 3, there's a series of changes requested by the Governmental Advisory Committee that again just deal with its role in serving as a channel for the Board in obtaining or seeking the advice of international treaty organizations and multinational governmental organizations.

Vinton Cerf: Louis, just one comment, to go back a bit in b and c.

Louis Touton: Yes.

Vinton Cerf: It should be – I hope it's clear that these various advices coming from the GAC don't limit our scope for obtaining expert advice.

So, for example, in "c," let's see, the Board transmit any requests for advice from....

I'm sorry; I'm looking at "b." The Board shall, as appropriate, consult with the GAC regarding appropriate source from which to seek advice.

And I would welcome any such input.

But I want to make sure that it is clear that the Board is also free to seek advice from parties other than those recommended by the GAC; is that correct?

Louis Touton: Yeah.

Just two comments about this.

First, this provision was the one that was cross-referenced up here.

It only applies when the Board is seeking advice about issues concerning public policy, first of all.

And secondly, the substance of "b," as you'll see, is merely a consultation requirement.

And once consultation is completed, the Board is to use its judgment about how to proceed.

Vinton Cerf: So we may get advice from the GAC about which organizations to consult with regard to public policy, and we may very well consult with them, but we are not constrained to consult only those that have been recommended.

Louis Touton: That's correct.

Part 4 here just relates to the advice sought on matters other than public policy.

And you'll see throughout these GAC-inspired changes, it's a bit of a realignment of the two classes of external advice.

In the October 23rd bylaws, the distinction was between advice to  – sought from multinational governmental and international treaty organizations on one hand, and on – from any other organization on the other.

And this has been reformulated according to the GAC's suggestions to be advice on matters concerning public policy and advice concerning other matters.

Section 5 just is really technical changes.

Section 6 is a substantive change in that in the October 23rd bylaws, it provided that the material from the multinational government, international treaty organizations would come back from – or through the Governmental Advisory Committee, in part because of the reclassification I just talked about, so that now this applies not only to the treaty organizations but also to other organizations that ICANN may be seeking external advice from regarding matters of public policy; that the GAC would not be a conduit back, but would have the opportunity to comment on that advice.

Vinton Cerf: Just a question about that, Louis.

Within this section, are there any time frames laid out so that this provision 6 doesn't wind up being – having the effect of a kind of pocket veto where we've received advice from an external committee, we're prepared to act on that advice; the GAC has an opportunity to respond; however, it fails to do so, in which case there's an infinite period of time before we're able to do anything.

Louis Touton: As you'll note, it just requires that there be an opportunity to comment by the GAC, not any specific time frame, particularly not an indefinite time frame.

Vinton Cerf: So –

Louis Touton: This same issue came up I think three places in the bylaws, and in this case we took care to ensure that inaction, for whatever reason, by the Governmental Advisory Committee would not block moving forward.

Stuart Lynn: I have a question that relates to that, too.

You used the phrase, when you said "public policy," "matters of public policy," it's not clear to me this paragraph 6 as worded is limited to matters of public policy.

Louis Touton: It's also not limited to the Governmental Advisory Committee, if you read it.

That all supporting organizations and advisory committees are to have an opportunity to comment on external advice.

That's, in fact, more or less –

Stuart Lynn: I see.

Louis Touton: – naturally met by Section 5 right above, since things are posted.

The advice has to be in written form.

Well, and obviously it should be posted in order to give people the  – the advisory committees and the supporting organizations the opportunity to comment on the advice.

Andy Mueller-Maguhn: But isn't number 6, then, the red indent, number 5?

Louis Touton: I'm sorry, I didn't understand.

Andy Mueller-Maguhn: Isn't number 5, then, already covering that, what number 6 says here?

If other ICANN body carrying out policies –

Vinton Cerf: No, 5 and 6 are very different.

5 simply says we're not bound by the advice we get.

Number 6 says that the Governmental Advisory Committee, in addition to the other committees, will have an opportunity to comment on the advice that we got.

Those are two separate things.

One, we're not bound by the advice; and two, they can comment on it.

Louis Touton: Okay.

Moving on, it was pointed out that there is a conflict of interests section in Article VI concerning the Board and Board members, but there was no similar section applicable to – explicitly applicable to officers.

Of course the President is both an officer and a director, so he was applied, but people such as the Vice President were not subject in the bylaws to a conflict of interest section.

And Section 9 has been added.

It tracks the periodic disclosure requirements of the conflict of interest section relating to Board members.

I should say that in practice, the conflict of interest policy that ICANN has adopted does apply to both officers and directors.

So this is already complied with.

But it was felt useful to explicitly state it in the bylaws.

Down in the fiscal matters section, which is Article XVI, a change was made in Section 4 regarding the annual budget to make clear or to enshrine in the bylaws the practice of posting the proposed annual budget on the web site. As was pointed out at an ERC meeting with the ccTLD constituency, it did not say that, and it's been taken into account.

It, again, has been ICANN's practice, of course, to, since the time of the Task Force on Funding in 1999, to have a budgetary process that involves the posting of many versions of the budget at various stages.

In Section 5, again, fees and charges will be published for public comment prior to adoption.

This is also required elsewhere in the bylaws, up in the transparency, Article III, but it was felt useful to point it out here.

And those are the changes that are in the draft that is being presented.

And I'm now going to make that little correction about GAC that I talked about, but turn the floor back to you, Vint.

Vinton Cerf: Okay.

So let me suggest that way of moving forward on this.

First of all, I think it would be appropriate to introduce a resolution to adopt the set of bylaws as they now stand with these modifications.

After that resolution has been introduced, we'll have an opportunity to discuss its provisions, and if there are further issues that need to be resolved, we'll discuss those as well.

I'd like to invite the chair of the ERC to have the opportunity to introduce this resolution, considering the amount of work that the ERC has put into reaching the document at this point.

So Alejandro, the resolution is before you.

Just to mike clear for Andy and anyone else, we'll put this resolution on the table.

We won't vote on it, however.

We'll just get it seconded so it's on the table, and that resolution says we should adopt these bylaws.

After it is on the table and seconded, then we can discuss it and we can go back to the issues you want to raise.

Andy Mueller-Maguhn: And change the additional parts?

Vinton Cerf: If we need changes, although I'm going to urge we not get carried away with on-the-fly modifications to the bylaws, bearing in mind that we still have time between now and amsterdam before we finalize them, since the transition element is not yet completed.

But we do have an opportunity to make – have a discussion about things that you want to raise.

Stuart Lynn: But Mr. Chairman, just to clarify that, my suggestion is that if any Board member does want to make changes, and I second what you said, when we're talking about documents' legal implications, it's very dangerous to make changes on the fly without written versions in front of you.

Let me finish if I might.

Should a Board member wish to do that, the normal and appropriate way to do that is to move it as an amendment to this resolution which may or may not be seconded.

If it is, that amendment is discussed and voted on in its own right.

It requires a simple majority to pass the amendment.

That doesn't pass the bylaw.

And then at the very end of the set of amendments, we vote on the resolution that may or may not have been amended and that would require two-thirds majority of the Board.

Vinton Cerf: That's correct?

Stuart Lynn: So any changes proposed should be in the form of moving an amendment to the resolution.

That is the standard way under Roberts' rules this is dealt with.

Andy Mueller-Maguhn: It's just a few words in the whole stuff, I can agree to that.

Vinton Cerf: Okay. So let's now introduce the actual resolution.

Alejandro Pisanty: Thank you, Mr. Chairman.

The resolution reads – I am going to skip most of the instaniations of the words "whereas," except the first one.

Whereas the ICANN Evolution and Reform Committee has developed a proposed new set of bylaws for the Corporation; whereas these proposed new bylaws were posted for public review and comment on 2nd October, 2002, minor modifications to these proposed new bylaws were posted on October 23, 2002; in response to comments received; these proposed new bylaws were the subject of discussion in the open public forum held in Shanghai, China, on October 30, 2002; these proposed new bylaws were further adjusted in response to the comments received during the public forum as attached in Appendix A; the Evolution and Reform Committee plans to submit for the Board's approval an additional Article of the bylaws, the Transition Article, that will govern the transition to a structure, policies, processes, and procedures contemplated in the proposed new bylaws;

Resolved that the – with the appropriate number, that the ICANN Board adopts the proposed new bylaws as attached in Appendix A as the new bylaws of the Corporation, such proposed new bylaws to become effective upon adoption of the Transition Article.

Further resolved, with the corresponding number, that the term and membership of the Evolution and Reform Committee is continued until the Transition Article has been adopted.

It's to do this on behalf of all of the members on the ERC.

Vinton Cerf: Okay. Do I hear a second? I hear Hans Kraaijenbrink. I think all of the members of the ERC, I don't think we're allowed to have multiple seconds.

All right.

So we have this motion on the table to adopt the bylaws as they have been rendered this morning.

So now it's open for discussion whether there is any changes to be made. Rob.

Rob Blokzijl: I think the aim of having bylaws is more or less a technical instrument describing, in this case, an organization with a particular mission. We are in the midst of our reforming this organization. And I am a little bit surprised that we are supposed to adopt a set of bylaws that will become effective if we figure out how to implement the various Articles of these bylaws.

The aim of – the ultimate aim of ICANN, or the main goal, is to execute a set of technical coordination functions for the Internet. Crucial in that area are a couple of other organizations. And I mention a few, like the IAB, IETF, the world of ccTLD administrators, world of original Internet address registries. None of those organizations I see, at the moment, as warm supporters of where we are today with ICANN. Even in the proposed bylaws, there are holes to be filled in describing the position and the role of these organizations.

And there are more holes than in the current text, because Article VIII should be a big hole. The address supporting organization, as described in these bylaws, does not exist today the same as the ccNSO. I find it exchange that the ccNSO's current position is reflected in the bylaws by saying "this is work in progress," whereas the address supporting organization is described in with as one, two, three, four, five perhaps, with the – I must say the footnotes subject to continuing discussion.

So my great worry is we are going to put some instrument in place describing a situation that does not exist.

And I am worried about the implications for the future coordination of crucial Internet technical functions if we focus so much on a few  – on building the technology around something that today is so ill defined.

Secondly, I suppose that this is only one stop on the road to the final set of bylaws. So how many times are we going through this process again, adopting bylaws that we know we will in a couple of weeks fundamentally change or add to?

So I have great difficulties in – at the end of this agenda point – voting for or against this resolution. I think it's far too early to do that. There are too many holes, fundamental, critical holes, critical for the execution of the mission of ICANN, to now adopt a set of bylaws that have, in my view, at this time, not much to do with the actual situation.

So I say, summarizing, I will have great difficulties voting for these bylaws, not so much for most of the content – and I think it's standard technology – but more related to where we stand at this moment in time and our responsibility towards the Internet.

If the vote goes on, that would be my reasons to vote against adoption of this motion. Thank you.

Vinton Cerf: Thank you, Rob. I would point out that the – voting for this amendment simply adopts the set of changes in current text. And we're all aware that there are missing elements, some of which are under discussion, and a transition plan which has to be developed.

So we do have extra work ahead of us. But this at least establishes a milestone on the path to completing the set of bylaws.

So I see this as a glass that's half full. Rob obviously sees it as a glass that's half empty.

Rob Blokzijl: As you say, it is a milestone, a step. But going where? That is too undefined, in my view. Yet, again, based on the observation that we are by far not – we have not finished, by far, our negotiations and deliberations with either the RIRs or the ccTLDs, to just name two crucial elements in what we intend to do.

Vinton Cerf: Okay. Katoh-san had his hand up. But I will say who I have on the list so far. Katoh, Hans Kraaijenbrink, Jonathan Cohen, and – and Helmut and Amadeu. Did I miss anybody?

Okay, Katoh-san.

Masanobu Katoh: Thank you, Mr. Chairman. I am talking about something different from Rob's point, but I can move on; right?

First of all, you know, I just want to say that I am going to support this amendment. This is a great work done by the Internet community, with the great initiative of the ERC. And I do thank all members of ERC and the Internet community, to come to this point

This is a good reflection and implementation of the blueprint we've been discussing for a long time. Of course, we heard yesterday and all the time that there are many remaining issues which we are going to continue to discuss in the future but regarding the issues we discussed within the blueprint, think we spent enough time to, you know, go into details and this amendment is a good reflection of all of those discussions.

I am very happy, you know, to have this on board today.

But let me make one comment regarding one particular provision, which is a part of the amendment suggested by Governmental Advisory Committee, GAC, yesterday.

First of all, I do appreciate all those, you know, suggestions from the GAC as we saw yesterday. They are very good, friendly amendments. And in that sense, as I said before, I am going to support all of those, you know, changes reflecting many of the GAC suggestions.

Let me draw your attention to the point, Article XI, Section 2, item 1, Governmental Advisory Committee, items j and k.

Here, the provision is asking the ICANN – I think the ICANN Board – to explain to the community or to GAC if we are rejecting GAC advice.

There is no such requirement or process in other three advisory committees in these bylaws. That means we are giving some slightly different procedure for advising the GAC in the case of their advices.

And I understand the background, of course, by adopting this bylaw into amendment, we are reconfirming the importance of the public sector/private sector partnership. And I do support such concept of a public/private partnership.

But this process, procedure required in these provisions may be a bit burdensome in the future. And I just want to comment for the record that this provision won't be a procedural burden of the ICANN Board.

For instance, as you know, in many cases, ICANN Board cannot agree on why we are disagreeing. In that case, it is extremely difficult for us to give a good reason for the rejection of the GAC advices.

In any event, we will have our votes, but no one can tell who is voting against those votes by what reason. And it's extremely difficult to give a full explanation of all the rejections.

So, of course, ICANN Board has ethical obligation to the Internet community, including the GAC, to give a full explanation to our best, you know, possible way why we are rejecting, why we are taking some actions.

But I hope this provision, this provision won't be interpreted to be too much burden, again, procedural burden, for the ICANN Board in the future.

With this good-faith interpretation of these provisions, again, I would like to support those additions. And I think the private sector/public sector partnership in the future will be very important.

Thank you very much.

Vinton Cerf: Just for clarification, you're not making a proposal to amend anything at this point, but reminding the Board that we may have – we might consider explanations of our actions with regard to other advice that we get besides the GAC?

Masanobu Katoh: That's correct.

Vinton Cerf: Thank you.

Let's see. Hans Kraaijenbrink.

Okay. Jonathan Crain [sic, Cohen].

Jonathan Cohen: (Inaudible) that's okay.

I wanted to reply to Rob. I, frankly, profoundly disagree and find the logic both flawed and the practical relationship between his examples and the real world also incorrect.

It is absolutely common practice in many areas of business, and particularly in law, which is what bylaws are about, to lay down a foundation without necessarily knowing for certain how the entire structure will look in certain circumstances.

I think a very good example of this is architecture, in which in many cases a building of some consequence will arrive at work in blueprints, and the foundation will be built, and the surface structure built while there's still a raging debate about the heating system or the lighting system or how the top of the building will look, or the outside. There is absolutely nothing wrong with that. If one agrees that a building needs to be built and everybody agrees about the foundation and the structure, you can get on with the job.

In this particular instance, there's a clear will of this Board and this community – I shouldn't say the Board, we haven't voted. But there's certainly a clear will right now to consider creating a new structure. And there is enough agreed upon to get on with the job and start building it, even if some elements within it are not yet finally decided.

If they have, in fact, done other things, those can be taken into account. The basic structure isn't in question, not even by the people who are in debate. And therefore to fail to support these amendments or bylaws on the basis that some work is yet to be done, in my view, is not a reasonable approach.

Vinton Cerf: Okay. Thank you.

I am going to go out of order for a moment to allow Rob to respond. And then I will come to Karl.

Go ahead, Rob.

Rob Blokzijl: My point was, to use the analogy of building future constructions, major building blocks are not in place. That's my worry. And that we are making frameworks, and then will find out very soon that, after reaching agreements, consensus with the major players, that we will have to redo it all. That's all.

I agree – I understand that in many, many circumstances, this is the right way to do it. You have to start somewhere. But in this particular case, I think certain elements are not well defined, elements which are absolutely crucial to the mission of ICANN.

Vinton Cerf: Okay. Karl.

Karl Auerbach: Yeah, I also want to speak to Rob's point, and following the architectural analogy, I think Saint Peter's was started by Bramante and finished by Michelangelo.

We may end up muddling this. I point out the document is 500 paragraphs, 17,000 words. And much of it didn't even exist until sometime in the wee hours of this morning.

And parts of it I haven't seen until now. And there are great voids one thing that struck me last night during our discussions was how thoughts in one area reflected into other areas. And I'm concerned that should there be adoption now, that it would constrain us in the ability to make those kinds of adjustments.

I mean, if not – we clearly have the power to do that. It's a mental kind of constricture that this would create.

And I – there's a – there was a lot of discussion yesterday from the floor about time to consider, time to be thoughtful. And this is of sufficient importance that time to consider and time to be thoughtful is important. And I know time is critical here, because we have the annual meeting coming up. But I think Rob was expressing a very important note of caution, which I agree with.

Vinton Cerf: I would point out that the text that we dealt with yesterday was prepared on October 2nd. So we've been contemplating for nearly a month. The changes that were made for today were relatively modest changes, (inaudible) the GAC recommendations.

So I think the note of caution is still well taken. But it should not mean that we cannot make progress.

I have Helmut next on the list.

Helmut Schink: Thank you. I would like to support the – I have two issues. First I would like to support Jonathan's point, that the – there are some issues – yes, there are some issues open in the bylaws which could not be solved in the sort period of time available, like the relationship to the RIRs and the ccTLDs. But we should move forward and adopt the bylaws, at least the parts which are available.

My proposal would be to amend the resolution accordingly to make sure that everybody is aware that there are open issues and that we have to work on this.

The other point is, the amendments made by the GAC or proposed by the GAC and presented yesterday have been changed significantly in parts of the document. For instance, in the Article XI-A, the – on the experts' advice, it did not discuss in detail the rationale behind these changes.

And one thing which gets lost by these changes or by not adopting the GAC text is the advice by treaty organizations like wipo and itu.

So they are not explicitly mentioned anymore here. And I think their advice would be very important to us. Therefore, I propose to amend the resolution in a way to make sure that we adopt the text as proposed by the GAC for this specific Article.

Vinton Cerf: Okay. Thank you.

Let's see. Amadeu.

Amadeu Abril i Abril: Okay. Thanks.

Vint, I have a question. Shouldn't we perhaps ask the directors if we want to discuss specific points like Rob first raised, and go for point by point basis instead of, you know, successive statements of the record?

Vinton Cerf: I think that the way I had proposed – planned to do this was that if a director brought up something that required an amendment, that we would then discuss that amendment.

Amadeu Abril i Abril: Okay.

Vinton Cerf: So far, I haven't heard that yet. I have heard comments on the existing text.

But if there is an amendment, then we will discuss that, complete that action.

Stuart Lynn: I heard Helmut just wanting to suggest an amendment.

Exactly.

Amadeu Abril i Abril: I defer my comment to the end of these discussions.

Vinton Cerf: I'm sorry. I misunderstood Helmut's suggestion. I thought he was simply endorsing the text by the GAC.

Helmut Schink: No, I am not endorsing the text as it is right now. I propose two amendments to the resolution.

I want us to make sure we have a phrase there clearly stating that there are missing issues in the bylaws, like the ccTLDs and the RIR relationship; and that we have to work on this.

That's quite natural, so that should be rather straightforward.

Vinton Cerf: Let's start with that.

So you want to have, in addition to the resolution –

Helmut Schink: An addition to the resolution.

Stuart Lynn: Could I suggest, Mr. Chairman, that if there is an amendment to be moved, that the amendment be moved and the precise language change be part of that proposed amendment. That if we talk conceptually with bylaws, we'll get into a lot of potential legal trouble.

In a resolution change, that's – maybe the Secretary of the Corporation can design things on the fly. But if we get into the specific language of the bylaws, we need to know exactly what it is that's being proposed.

And that we follow a process of moving an amendment. If there's a second, we go to a subroutine call on that amendment, then deal with it, or not, as the case may be.

Vinton Cerf: So it's on your shoulders to provide precise language to change something.

And the question is, do you want to change a bylaw or do you want to change the text of the resolution?

Helmut Schink: I would like to change the text of the resolution to make sure that the text of the bylaw is changed.

So I will propose a change to Louis.

(Unknown): okay.

Vinton Cerf: I am now confused by what you want to do.

Stuart Lynn: I think I understand. Maybe I can help here.

I think, Helmut, on the – we'll want to eventually move two amendments. We should take one at a time.

The first is to move to amend the resolution itself, not the bylaws, but the resolution itself, to have a "whereas" added that perhaps Louis can word on the fly, that "whereas this Board recognizes the importance of completing discussions on the un- – incomplete parts of the bylaws with the RIRs and the ccTLDs," you just want, I think, a whereas like that in there so we're acknowledging that whole  – that precise language should be inserted. We can vote on it as an amendment to the resolution or not. Maybe the mover and seconder would just accept it, we don't even have to vote on it.

Then the second amendment I think Helmut wants to make is to move to amend a specific paragraph or the bylaws to adopt the language that I don't have that was specifically proposed by the GAC yesterday.

Is that correct?

Vinton Cerf: Okay. Thank you, Stuart.

Stuart Lynn: So I suggest we deal with the first part first, because it may well be that the mover and seconder will just accept that without our having to vote on it. That's up to Alejandro and the seconder.

Vinton Cerf: Okay. So we're – if you can see on the screen, Helmut. The secretary will have to work on typos. There we go.

Was there, in fact, a second now for this – Amadeu.

Stuart Lynn: Helmut, is that the language you want?

On your screen.

Vinton Cerf: Okay. Helmut, we have a proposed text in the resolutions to remind everyone that we have a lot of work to do with regard to –

Stuart Lynn: Will the mover and seconder accept that?

Vinton Cerf: If we have general concurrence, we won't have to vote on this. I don't see anyone objecting to adding this to –

Sang-Hyon Kyong: (Inaudible.)

I'm not sure exactly what this means. The processes, procedures contemplated in the proposed new bylaws as well as new or revised provisions concerning such and such.

Are there new or revised provisions or are three going to –

Vinton Cerf: We don't know.

Sang-Hyon Kyong: Are they coming or what?

Vinton Cerf: Don't know what the outcomes of the discussions will be with the ccTLDs and the RIRs. That's why this says "new or revised provisions."

The – in the case of ccTLDs, the CNSO is entirely new. In the case of the RIRs, we may revise the current provisions that are in the bylaws.

Stuart Lynn: May I suggest when reading this we insert the word "proposed," so it says "as well as proposed new or revised provisions." If you hear the governing words at the beginning, it says whereas the Evolution and Reform Committee plans to submit for the Board's approval, 1, and then 2, as well as proposed. And that implies they're not defined yet. They are to be proposed.

Vinton Cerf: Okay. There is – all right. I see nodding here.

Sang-Hyon Kyong: I'm continuing the request for clarification.

Does this mean that the proposed – the new or revised provisions concerning such and such to be proposed at a future time?

Stuart Lynn: Yes.

Sang-Hyon Kyong: And that will be, again, brought up for formal voting by the Board?

Stuart Lynn: Yes.

Sang-Hyon Kyong: Okay.

With that, I can understand what it is.

I have a – an amendment to propose on another part of –

Stuart Lynn: Excuse me, Sang-Hyon –

Vinton Cerf: Let's work on this one first.

Stuart Lynn: – let's work on this one, and then Helmut had another amendment that he wanted to propose.

Vinton Cerf: Okay. So if there are no further modifications to this suggested change to the resolutions –

Ivan Moura Campos: Vint?

Vinton Cerf: Is there a second for this?

Stuart Lynn: Again, if the mover of the resolution, which is Alejandro, and the seconder, are prepared to accept this, we don't need to vote on it. It's just part of the resolution.

Someone who doesn't like it could move to amend it at some future stage. But if Alejandro and the seconder accept this change. I don't see any violent hands going up objecting to it. Then we can move on to Helmut's second amendment.

Vinton Cerf: Okay.

Okay. There's a request to read the change so that it gets up on the  – this is for Ivan.

Ivan, the change is in – which "whereas" is this?

Louis Touton: Vint, let me read.

Vinton Cerf: Is it the whereas, the Evolution and Reform Committee. So it now – the modified paragraph reads:

" Whereas, the Evolution and Reform Committee plans to submit for the Board's approval (i) a proposed additional Article of the bylaws (the "Transition Article") that will govern the transition to the structure, policies, processes, and procedures contemplated in the proposed new bylaws, as well as (ii) proposed new or revised provisions concerning Regional Internet Registries and ccTLD registries."

That's the proposed amendment to the resolutions.

I don't see any objections to that. So let's move on now to Helmut's  –

Yes, go ahead, Ivan.

Ivan Moura Campos: Can you hear me?

Vinton Cerf: Yes. Go ahead.

Ivan Moura Campos: Yeah, okay. I understood, and I read it on the screen.

Vinton Cerf: Okay. So we're going to go on now to the substantive recommendation that Helmut has for the bylaws themselves.

Helmut Schink: Maybe there are not that substantive. Joe just showed me another paragraph where this kind of – mentioned in a similar way, and joe just drafted some text. So maybe we can come back to this later during the meeting? Just take some time –

Vinton Cerf: We can come back to it later if you want to skip, that's fine.

Louis Touton: I think we can actually do this in, I'll say, near real-time.

It's in Article XI-A, Section 2, under "types of expert advice." There in the GAC – pardon?

Joe Sims: It's the deleted language.

Louis Touton: In the GAC provision, there was additional language that was deleted because it was felt that it was superfluous. But there's no objection to including it, and perhaps it is not superfluous.

Give me a moment here.

Okay. I believe I have now made the change to this section. And it's consistent with the rest of the bylaws, so it is a safe thing to do.

Vinton Cerf: So for Ivan's benefit, we're down in the part 2, types of expert advisory panels, in the bylaws. And there are two subsections to that part. One of them at the beginning reads, "on its own initiative or at the suggestion of an ICANN body, any ICANN body, the Board may appoint or authorize the President to appoint expert advisory panels consisting of public or private sector individuals or entities. If the advice sought from such panels concerns issues of public policy, the provisions of Section 1, part 3, subpart b, of this Article shall apply.

In part b of Section 2 on expert advisory panels, in addition, in accordance with Section 1, part 3, of this Article, the Board may refer issues of public policy pertinent to matters within ICANN's mission to a multinational governmental or treaty organization.

Is that sufficient, from your point of view, Helmut?

So that's a proposed amendment.

I have a question for Stuart.

You were making a pointed observation of how to process these things.

I would assume that this is proposed as an amendment and that we need to vote on this.

Stuart Lynn: Yes.

The normal way this would get done – there's two ways it can happen.

The mover and the seconder can accept the amendment, in which case it's part of the resolution, and then anyone who doesn't like it can move to strike it or whatever they want to do as another amendment.

Or another way is just to vote on the amendment itself, requiring a simple majority.

It needs to be moved, seconded, and then discussed and voted on as an amendment.

Vinton Cerf: Perhaps the best way to figure this out is to, first of all, find out whether the original mover of the resolution, which incorporated in its text the entirety of the draft bylaws, whether the mover would accept this amendment.

If the answer is yes, then I need to find out if there are any violent objections.

Stuart Lynn: Mover and seconder.

Vinton Cerf: So we don't have – is there anyone who objects to this particular proposal?

If it did, then I would move to a vote to find out how much of an objection there was.

But I don't see any, so I think we can move on.

Well, I'm about to pop up now to the previous list.

Sang-Hyon Kyong did you want to make a comment about this particular  – no.

Okay.

Then – is this about this particular amendment?

Karl Auerbach: It's more of a meta comment about the process we seem to be falling into right here and how this discussion is going, which is the sense I'm getting is getting equivalent to Rob's concern where we're dropping off a 100 meter cliff with a 50 meter rope, and the integrity of the pieces are going to be lost and we're going to lose track of our thoughts pretty quickly.

Vinton Cerf: I think it depends on the nature of the changes being proposed.

In this case it's an amplification of which entities we can consult for advice.

I don't find that to be particularly confusing but I do take your point that if we move into territory that's more complex, the best strategy would be to move that off to a later time when we can consider it in more detail.

So I'm now prepared to move up the chain and Amadeu is now the next person on the list.

Amadeu Abril i Abril: Okay; thanks.

I don't have any amendment or to put on the table for this discussion, so just more comment on the things that are important and things that make me still feel uncomfortable to hear.

When we started the reform, we had some goals in mind, some problems we wanted to address.

Many of them, the policy formation didn't work as we expected or the committee expected, or the problems related with the pledge of the organization with government on one side and at large on the other.

And finally, funding was one of the driving issues for the reform.

We have solved some of them.

I think that the funding is improved.

It's not – I mean, it's not directly related in my mind to these bylaw changes, but we have improved the method for that.

I think that what we are hearing, and, – and it is a large problem, is, you know, a very difficult resolution, everybody is not pleased.

But at least we have a mechanism in my mind that will allow for structural participation for, you know – would put incentives to organize individuals and still the other way, to have a reasonable presence, not the individual voice of the individuals, but the collective voice of the individuals channeled through our process.

And we are now discussing to incorporate some amendments from the GAC presented yesterday that are nearly all of them accepted except for perhaps the mission statement.

But it was a language question simply, not a principle question.

We feel that we are getting into a better resolution here.

There is an area which I think we are still are not yet there.

And it is this policy formation.

The problem is we had that the SOs didn't work for different reasons.

The Board didn't get any policy advice, or very limited and very vague, for also internal Board procedures and structure, the Board was not able to really work on policy issues dealing with form or nothing.

And finally, only the staff had the ability to discuss with interested parties and propose finally, it was from that part that the real policies came.

We wanted to also change that.

Are we better here?

I think that SOs structures are better for the GNSO, but we don't have the others.

But there are still two things that are really worrying my mind.

One of them is the problems being the part logics, it's fight to be this chair of having a seat here.

There has been somehow removed from the SO, but not completely.

It has been put in the nominating committee.

I don't like the structure of the nominating committee.

I think that it will produce many of the problems here.

For the (inaudible) clearly, I think we should be more courageous and go farther into the functions and forget interests that we probably were discussing yesterday, intellectual property as a constituency doesn't need to exist, even if as a participant and interest should be within the DNSO.

Same for ISPC probably.

So we have a better SO.

We have you know nominating committee and the like.

We have a serious problem regarding the Board size that in my view prevent the Board from effectively working.

But this is something that perhaps we can address elsewhere.

After any other business or from now on, about how we work and how we restructure our work.

So I will defer to that.

What I'm saying is I still have concerns like Rob.

We are agreeing on these points, but same time we are feeling a critical part of the Internet community that ICANN is supposed to represent and act for has less and less, and I would say trust or interest, depending on the parties, on what happens here.

So this is really worry.

So where I really would say here is even if I don't believe that these bylaws would solve the problems we had to the extent I wanted, all of them – I mean, there is nothing that is worse than before.

Many things are better than before, but many things are still left outside.

For once, I will not stick to my principles to death and vote against something that it's not yet it.

I think that frankly we heard from the community that everything here is a little bit better, but we should keep in mind that many things are still left.

And all the discussions we're having here are showing also during this week that yes, this is more civilized but we are also tracking less interest from the real participating parties, from run accompanying using the infrastructure we are supposed to coordinate.

And this is worrying in the sense we have said up to now.

So I will vote in favor of this not because I think it's it.

Simply because I think we need to concentrate on more important things right now.

Vinton Cerf: Thank you, Amadeu.

I'm sure every member of the Board would like to spend more time working on the substantive issues of Internet policy rather than the shape and format of the bylaws.

Stuart, you are on the list.

Stuart Lynn: Thank you very much, Mr. Chairman.

Let me get a couple of things out of the way and then address the main point I want to make.

Katoh-san raised an point which is an important one to me, which is it's difficult to explain why this Board is disagreeing.

It's almost as hard as it is to explain at times why this Board is agreeing.

But nevertheless, that being said, if we find it difficult in any situation, if it's not a clear situation, we could always convey the transcript of our discussions, and anyone can see the variety of reasons why people disagree.

I think we need to give that a try and see how it works in practice and not worry too much about them.

Let me get to the main point I wanted to make.

I'll say it again.

I know you're tired of hearing it, and I'm sure everyone else is, too, but when I kicked this thing off, I did point out the three major problem areas. In reverse order: Funding was the first point, the second point was the tradeoff between efficiency and process, and the very structural issues, and the third was stakeholder relationship.

I have a lot of sympathy with Rob's point, even though I disagree with the conclusion of where it goes, because I have to because that was a key area that I pointed out in the first place.

And anyone who thinks that these issues have arisen because of reform I don't think has looked to the careful and difficult history of ICANN over a period of years.

So that is certainly very important work to be done; however, as Vint said, half full or half empty, I think it shows enormous progress, and whereas the communities that Rob refers to are extraordinarily important in the ICANN framework, they are not the only communities.

There are other communities, too, in which these proposed bylaws establish a set of building blocks in moving forward.

The question in my mind is would any of these proposed changes affect negatively the future discussion. That's hard to tell because we don't know what the future discussions with the RIRs and ccTLDs are going to say or how it's going to come out.

My own view is that dealing in areas that the subroutine calls that are in the bylaws that are open will be able to be plugged in without changes to the rest of the bylaws, and at least it gives a framework for the rest of those – for the negotiations with other parties that's in place.

And if there are indeed, as Karl suggested, other changes to be made down the line, they can be made.

This Board can be modify the bylaws by two-thirds at any time.

I think this is an important, critical step forward.

This creates some clear structure in areas where we can make clear structure.

It clearly defines processes in those areas that can streamline some of the things that have bedeviled us in the past.

It establishes and regularizes relationships in areas that we can.

I would urge the Board to take the half-full approach and move forward with these, while recognizing, as Helmut's amendment to the resolution does, we still have a lot of work to do on the first problem that I identified; namely, stakeholder relationships.

Thank you.

Vinton Cerf: Thank you, Stuart.

Andy, you have the floor.

Andy Mueller-Maguhn: Just to be sure I'm on the right track, would this also be the time for minor amendments to the bylaws we have on the table right now?

Vinton Cerf: Yes, you can.

Andy Mueller-Maguhn: Okay.

I have five of them.

Each of them is very small, so I hope this goes fast.

First one is Article I, Section 2.1.

Core values.

Please go to point 1.

Article I, Section 2, 1, it says, preserving and enhancing – sorry.

I mean point 2.

Respecting the creativity.

Vinton Cerf: It's point 2.

Okay.

Andy Mueller-Maguhn: I'd like to have this a little different saying "respecting the creativity, comma, innovation and flow of information made possible by the Internet," and so on.

Excuse me.

Free flow of information, of course.

Vinton Cerf: For Ivan's benefit, Ivan, the text of this, this is in the core values, Section 2 and it's part 2 and it now reads respecting the creativity, innovation, and free flow of information, which Andy has suggested we now add, "made possible by the Internet by limiting ICANN's activities to those matters within ICANN's mission requiring or significantly benefiting from global cooperation."

So that's the proposed amendment.

We're in subroutine mode now.

Is that amendment acceptable to the mover?

Andy Mueller-Maguhn: I'd rather see a vote.

Vinton Cerf: Okay.

So – he said he would rather see a vote so we will now put this amendment up?

Stuart Lynn: Is there a seconder for the amendment?

Vinton Cerf: There's a second.

Okay.

Now we can have some discussion, and Hans.

Hans Kraaijenbrink: Thank you, Vint.

I have a problem with the qualifier in the word "free." So I would agree as a friendly amendment to this amendment to delete "free." But I will not support the text as it stands.

Andy Mueller-Maguhn: Okay, I take it.

I take it as a friendly –

Vinton Cerf: Yeah, that's a friendly amendment so we'll just proceed from there.

Are there any other comments on this proposal?

All right.

We're ready to vote on this.

All those in favor, say aye.

(Many Directors): Aye.

Vinton Cerf: Are there any opposed?

Are there any abstentions?

It's unanimous.

Thank you very much, Andy.

Andy Mueller-Maguhn: Now I'd like to go to Article II  – excuse me, Article III, Section 2.

Ivan Moura Campos: Excuse me.

Vinton Cerf: Ivan, go ahead.

Ivan Moura Campos: I just want to make sure that my vote in favor was registered.

Vinton Cerf: Thank you; I'm sorry, Ivan.

I will pay more attention to making sure we've heard your vote.

Ivan Moura Campos: Okay.

Andy Mueller-Maguhn: Thank you.

So Article III, Section 2, that's the transparency article.

Section 2 is the one about the web site.

It says specific meeting notices and which may include, among other things, information on ICANN's budget, annual audit, financial contribution.

If you could please go to that point.

And here I'd like to add "and the amount of their contributions." Which means we do agree here to publish that we make financial contributions, but we not – you say explicitly, and I'd like to say that explicitly the amount of that contributions going to the different parties.

Vinton Cerf: Okay.

Well, hang on.

First of all, we have to find out whether this needs to be voted on or whether it's an acceptable amendment.

If we're going to have a discussion on it, we have to have a vote, so we need a second.

Okay.

So Karl seconds.

Now we can discuss this.

Linda.

Linda Wilson: Andy, are you – the language here speaks of financial contributors.

Andy Mueller-Maguhn: Right.

Linda Wilson: The language I heard you use was financial contributions.

Andy Mueller-Maguhn: Excuse me, I'm talking about financial contributors.

Linda Wilson: And what you're interested in is who are they and how much are they contributing to us?

Andy Mueller-Maguhn: Right.

Linda Wilson: Okay.

Andy Mueller-Maguhn: Transparency.

Vinton Cerf: Karl.

Karl Auerbach: I believe we're actually obligated to publish this to IRS 990's, however, those generally come out on the very last day of the period, which is approximately two years after the data has occurred so it's very stale.

It's my belief that the reason we would want to do this is more prompt and thus more useful disclosure of the amount of contributions.

Vinton Cerf: Thank you, are there any other discussions about this proposed amendment to the bylaws?

All right.

All those in favor, please raise your hand.

One, two, three, four, five, six, seven, eight, nine, ten, – 17.

Are there any against?

And thank you, we'll get Ivan.

How do you vote?

Ivan Moura Campos: Yes.

Vinton Cerf: All right.

Is there any opposed?

Are there any abstentions?

Two abstentions.

Okay.

So that passes.

And we'll go on to your next recommendation.

Andy Mueller-Maguhn: Thank you.

Next one is Article IV, Section 2.16.

That's the reconsideration committee's procedures.

We have there this phrasing where the affected party had an opportunity but was unwilling to participate in the public comment period relating to the contested action.

I think it is impossible to prove if someone had knowledge or not knowledge about the possibility of such participation.

I suggest to delete everything, where the word "where the affected party" and so on and the sentence "where otherwise abusive." The "or" of course can go away, too.

Excuse me, who is editing this?

Louis?

Louis Touton: Yes, I'm the editor.

Andy Mueller-Maguhn: The sentence would stop at "otherwise abusive."

Louis Touton: Okay.

Vinton Cerf: So Ivan, I'm not sure whether you found that part 16 of the transparency section.

I'm sorry; of the reconsideration section.

Have you found that, Ivan?

Ivan Moura Campos: Yes, I'm scrolling down.

Vinton Cerf: Okay.

So what Andy is suggesting is that we strike the middle of part 16.

I would have to imagine that this language was put in there because of something that happened that caused us to want to avoid wasting the reconsideration committee's time, but perhaps this is a matter for some further discussion.

Andy Mueller-Maguhn: Still, the argument is can we prove someone had knowledge or not knowledge.

Vinton Cerf: First let's find out if there's a second for this alteration.

Karl seconds.

So now we'll have a discussion.

Jonathan Cohen: Well, I certainly wouldn't want the protection against abuse to be an abuse.

I think it's fairly standard in situations like this to provide that where people have had an opportunity to present their views or to do something and fail to do so, that they will not – I certainly understand Andy's point.

You can argue a negative till the end of time and never get a possible answer; however, what is common in situations like this is provide that there is a proper way of giving notice of the opportunity, which is acceptable to the community.

In law, often a notice will be a publication in a newspaper.

But in our situation where it is common to have a web site accessible to all, this is an Internet community, I think, and notices given, and an opportunity is provided to comment or participate, and you fail to do so within a given time, then you should be excluded.

The one exception may be, and I would assume that that would be the case, and that is if you can establish to the satisfaction of the reconsideration committee that for whatever reason it was inaccessible.

Let's say you're in a country where either language or accessibility was not there and you could convince the committee.

I don't mind some words to that effect, that there was good reason why you failed to participate.

Then you should not be prejudiced.

Absent that, I think that it's what we call hiding in the woods, and you don't allow that.

Andy Mueller-Maguhn: But Jonathan, this thing doesn't say he missed.

It says he was unwilling.

And I just want to delete the paragraph saying he was unwilling, because you would have to prove that unwillingness, and who will make that decision?

Jonathan Cohen: I think what you can do – that may not be a bad point in itself, but maybe the way to do it is not to delete the entire subparagraph but rather to say "had an opportunity and did not participate." And then if they can show cause that is acceptable to the committee, then it may be an exception.

Vinton Cerf: Okay.

I have several people who want to comment.

Stuart and then Karl.

Stuart Lynn: I'm sympathetic to what Andy is trying to achieve here, because tests like "unwilling" are vague and hard to prove.

This is an example where wording often, on the fly, gets very, very difficult.

I can quite see wording of the kind that says or where the affected party was notified by failed to take advantage of the opportunity to participate in the public comment period within the specified period.

But I hate to word things like that on the fly.

Maybe Louis can do it.

But the intent of what you're trying to achieve is understandable, but I would like to see some language in there that achieves the intent of what that's trying to achieve without the "unwilling" being there.

Vinton Cerf: So one possible outcome of this discussion, Andy, might be that we note that section for attention but we may not necessarily make the modification today.

I'm not suggesting that should be the outcome; I'm saying that's a possible one.

Karl.

Karl Auerbach: Yeah, I think there's merits to both sides of the discussion.

We have to remember, we heard yesterday people who were again – I'll probably keep saying this all day – who were concerned about the fact they're not necessarily in an information rich area, that their connections to the net are weak, that their first language is not English.

Various reasons why people may not participate or participate well in the public processes.

And although I think Jonathan makes a strong point, these people are probably going to have the hardest time of making the uphill argument that they didn't participate for a good reason, and I don't feel comfortable closing the door on them.

Because they're probably the ones who, I imagine, are – have the most unique perspectives that we ought to hear the most.

Vinton Cerf: I have a question for the chair of the reconsideration committee.

Has there been any occasion when this particular clause has been invoked or has had to be invoked?

It might be the case that –

Louis Touton: Vint?

Vinton Cerf: Louis.

Louis Touton: This clause, in fact, the whole reconsideration provisions, were drawn from an assistance effort by Becky Burr where she went out and looked at applicable provisions.

I do believe there are some cases where this could be invoked.

It's not currently in the bylaws.

I take Andy's point that in some cases it may be difficult to show that someone was unwilling, in which case this wouldn't apply.

In other reconsideration matters – for example, a reconsideration matter brought by a large registry – it might be very clear that they have sandbagged.

Andy Mueller-Maguhn: Okay, let me make my concern a little more concrete.

What I fear is that the argument someone was unwilling, an argument that cannot be proved anyhow, becomes a kind of show stopper for the reconsideration committee to dismiss people's input.

And I think – I don't – that's not a personal thing about the people in the reconsideration committee.

That's just something that makes people feel not good.

And I think it's better to simply have it not in there because unwillingness to prove, I think it's bullshit.

Vinton Cerf: A technical term.

Stuart.

Stuart Lynn: I think there are two threads and discussions going on here.

One is with substance, one is with wording.

By substance, members of the Board may or may not agree that something of this kind needs to be in there to try to achieve what it says there.

The second is wording, which is the vagueness of the word "unwilling." I would propose one possibility, and I'm going to have to ask Louis whether this is workable, is if the Board agrees to strike that phrase as Andy suggests right now with the understanding that tighter wording that removes this ambiguity of the word "unwilling" be proposed for action in December.

Then the Board can vote on the substance separately from the wording issue.

Andy Mueller-Maguhn: I'd like to still have this as a vote here and now.

Stuart Lynn: I'm proposing that.

I'm proposing that we – I'm proposing that we accept your amendment, okay, but with the understanding that more precise wording come back for a vote in December.

Andy Mueller-Maguhn: All right.

Stuart Lynn: Is that –

Vinton Cerf: Karl.

Stuart Lynn: Can I ask the secretary whether that will be an acceptable procedure?

Louis Touton: Yes, I'm just trying to implement that by putting a bracketed clause noting that, similarly, some of the other instances in which that's done in the bylaws.

Vinton Cerf: Another alternative here is to observe, as has been observed several times, that the Board is free to change the bylaws, two-thirds vote.

So one way to deal with this very cleanly is we vote on it and strike the clause; later if we decide we should put something in there, we can.

But rather than making a very complex amendment that includes actions to be taken in the future and everything else, I think the simpler thing to do would be to find out if everyone agrees to strike the clause for now and then go back and think about it?

Stuart Lynn: That's exactly what I'm proposing.

Vinton Cerf: Except that you have a bunch of provisions in there and I don't think we need to document those.

Stuart Lynn: Those are just verbal provisions in my own mind; that you can expect to see, if the ERC committee feels strongly about this, a proposal in December.

Vinton Cerf: So Karl had his hand up and then Hans.

Karl Auerbach: This is an amendment that I believe has been seconded?

A proposed amendment and which has been seconded?

Vinton Cerf: Yes.

Karl Auerbach: I'm hearing Stuart proposing another amendment second level down and I think that should be seconded and approved itself.

Stuart Lynn: It's very simple; I'm saying when this comes to a vote, I will vote in favor of it.

And what I am saying, just as a verbal comment, if the ERC feels strongly this needs to be pursued in December, it will come back as part of its package in December with what I hope would be better wording to remove the ambiguity about "unwilling." And then the Board can decide what it wants to do with it.

Vinton Cerf: This is not a proposal to amend anything.

This is an argument in support of Andy's proposal.

Do we have any more discussion on this point?

Hans.

Hans Kraaijenbrink: In line with the discussion, and with Stuart's point, I would vote against deletion.

But I would make a note that we revisit on the basis of rethinking in line with the comments by Andy.

I believe it was proposed with good reason by the ERC.

We understand that we agree to the concerns, but I do sense that it is difficult to agree on amended text which has the legal point in it.

But to delete it and then revisit it, I would like to keep it and revisit it at the final implementation.

Vinton Cerf: Well, those are the two choices, obviously, to strike it and then revisit it in november – December, or to leave it in place and revisit it in December.

And those are the two options.

So we need to decide which of those two we want to take. Helmut.

Helmut Schink: I would like to support Hans's point and remind you that this text was there for a month, something like this, and we should concentrate on these issues which have been brought up during this meeting.

Vinton Cerf: Thank you.

Andy, you just said something.

Andy Mueller-Maguhn: I'm just still asking for a vote, yeah.

Vinton Cerf: Okay. So Andy would like to know whether we can take this out now or not.

So I think we should allow him that opportunity.

If there is no further discussion, I call for a vote. Show of hands in favor of striking this text from part 16. For Ivan's benefit, the part that is being struck from part 16 of the reconsideration portion of the bylaws, the part that's struck says "or where the affected party had an opportunity but was unwilling to participate in the public comment period relating to the contested action, if applicable."

And that text would be struck if you vote in favor.

All those in favor, please make a show of hands.

All those in favor of striking this text. One, two, three, four –

Stuart Lynn: I was persuaded by the arguments I heard since I made my statement. That's what Board discussion is all about.

Vinton Cerf: You're allowed to change your mind.

Okay. So let's get the hands up.

One, two, three, four, five, six.

And let me check for Ivan. How do you vote on this, Ivan?

Ivan Moura Campos: Yes. I vote yes.

Vinton Cerf: Okay. That's 7 in favor.

How many against?

One, two, three, four, five, six, seven, eight. Are there any abstentions?

Two abstentions. Three abstentions.

Okay. So the motion does not pass. But the minutes should show that we discussed at some length this portion of part 16, and that we may, indeed, want to revisit the way it's worded.

Andy, you still have the floor.

Andy Mueller-Maguhn: Yeah. So then I'd like to go to Article XI, Section 2.1. That's the stuff about the GAC principles. I'm sorry, I need to go there myself.

Vinton Cerf: We are in Article XI; is that right?

Andy Mueller-Maguhn: Right. Section 2.

Ivan Moura Campos: Did we go backwards?

Andy Mueller-Maguhn: Article XI, Section 2.

Vinton Cerf: Article XI, Section 2. This has to do with specific advisory committees.

Andy Mueller-Maguhn: I just don't have page numbers on here. Sorry. Point c is the Governmental Advisory Committee may adopt the operating principles of procedures to guide its operations. I would like to add "to be published on the ICANN web site." because I missed the transparency of the GAC principles.

Vinton Cerf: Let's see. Ivan, this is in part c, which reads:

"the Governmental Advisory Committee may adopt its own charter and internal operating principles or procedures to guide its operations."

Have you found that?

Ivan Moura Campos: Yes.

Vinton Cerf: Okay.

Andy Mueller-Maguhn: Then add –

Ivan Moura Campos: Its own charter and internal –

Andy Mueller-Maguhn: And then add after "operations," "to be published on the ICANN web site" right there.

Vinton Cerf: And the point here is that –

Andy Mueller-Maguhn: Just, to be – the GAC has its own web site?

Louis Touton: Andy, the current state of affairs is those are published on both the ICANN and the GAC web site. I've used the term "Website," which is defined in the bylaws to mean the ICANN web site.

Andy Mueller-Maguhn: Okay. I just want to ensure that stays there.

Vinton Cerf: Okay.

Andy Mueller-Maguhn: Because I don't want the GAC to become a conspiracy, like some of their meetings are.

Vinton Cerf: Okay. This sounds pretty friendly.

(Laughter.)

Vinton Cerf: Would the mover accept this?

Vinton Cerf: Okay. Are there any objections to this?

Ivan?

Ivan Moura Campos: No, no objection.

Vinton Cerf: Okay. So let's go on.

I'm sorry, Hans, we – if we don't have a motion on the table that we have to vote on, the comments are probably inappropriate.

Go ahead.

Andy Mueller-Maguhn: Okay. Article XI, Section 2, point 4. That's the ALAC advisory committee. I guess we have the liaison thing put in there. But I don't recall what – because it's a new paragraph, which one it was.

Right. The question I have is, how can we ensure that these people have reimbursement or at least the possibility to get their travel cost? Because I fear that the ALAC theory up here might be run – run into serious funding problems to become reality.

So, to be honest, I have not a directly proposed wording for this. Maybe someone can assist with this. But at least I'd like to raise the question how we deal with this problem.

Vinton Cerf: Okay.

Stuart Lynn: Mr. Chairman, I think it is a mistake to hard-code any funding into the bylaw.

It has to be subject to annual budgetary considerations. And that's the way – place it gets considered, is part of the annual budget.

Vinton Cerf: I think what Andy was concerned about – I'm not trying to read anything into your head here – is that there not be a prohibition from that support.

And there's nothing in the bylaws that says we could not support that, as long as there is adequate funding and provisions have been made for it. So I think you're okay.

Louis Touton: Mr. Chairman, there may, indeed, be something. There's a provision in the bylaws that prohibits the funding of travel for regular GNSO participants. And it's hard to – so I think what Andy would be suggesting is that the members of the GNSO council could not receive ICANN funding, but the liaison could.

Andy Mueller-Maguhn: Right. Accept them in that point.

Vinton Cerf: Which paragraph?

Louis Touton: The GNSO Article, which is X, is it?

Let me find it here.

Vinton Cerf: May I make a suggestion?

It's somewhat along the lines of Stuart's observation. There's nothing in the bylaws that currently would prohibit funding of ALAC costs, but we don't yet know at all what the funding sources will be or what the size of the budget will be.

It seems to me that that's an operational matter that should be contemplated as we get more experience with the ALAC operation.

Stuart Lynn: Mr. Chairman –

(Multiple people speaking simultaneously.)

Stuart Lynn: – that's not true.

Vinton Cerf: I would suggest, Andy, that this doesn't require a bylaw modification at all, but, rather, attention paid to how the ALAC is supported.

Stuart Lynn: I think that's not quite – possibly not true, as I understand what Louis is saying.

But let me ask you a question, Louis.

If the liaison is not considered a GNSO participant, then this wording doesn't prohibit it; is that correct?

Louis Touton: That's correct.

Stuart Lynn: But what's your interpretation? Would the liaison  – the ALAC liaison be considered a GNSO participant for this purpose or not?

Louis Touton: I'm not sure I have an interpretation. These bylaws haven't even been – been adopted. It may be premature to ask the General Counsel for such an opinion.

Stuart Lynn: There's some ambiguity there.

Vinton Cerf: Jonathan.

Jonathan Cohen: If I can make a suggestion. I mean, I'm not going to try and interpret the bylaw. I could certainly argue both ways very quickly, depending upon who paid me the most.

But I do think it's an important point. I think Andy's point is well taken. And I think there's probably some sympathy of – if that's the right word – on this Board for the possibility of trying to provide assistance to the ALAC as it gets going, to ensure that it does become a vibrant part.

But it seems to me that maybe it's a little of the cart before the horse. It seems to me that rather than being in a bylaw amendment, as you suggest, that this is a proper subject to be put on the agenda for this Board to discuss, and if the Board, in its wisdom, feels that this is something that ought to be done, that it can be referred both to the counsel, to ensure that the bylaws don't prevent it, and to the finance committee, to do its best to try to make a place for this funding.

Andy Mueller-Maguhn: I could agree to – because I don't have a concrete wording idea here, to be – have that on the agenda of the December meeting, because it looks like you agree to the substance, but care about the technical, mechanical way.

Jonathan Cohen: I just don't think at this – I think it's premature to place it on the agenda as a bylaw item. I think it's much more important that the Board discuss it and agree that this is something we ought to be doing, which I think many feel it is. And then take the appropriate steps to ensure it's possible both from a bylaw point of view and from a financial point of view.

Vinton Cerf: In order to accommodate both of these observations, perhaps the right context is to talk about the ALAC and how it works.

When we get to that discussion, this issue may come up. And if it does come up and if there is a question about bylaw provisions for support, then I think we can do as Jonathan suggests.

So rather than putting this on the agenda specifically as a bylaw discussion, I would suggest that we incorporate this as a discussion about ALAC. And move on now to whatever –

Do you have any more of these things – how many more do you have?

Andy Mueller-Maguhn: My last one is Article XIII, Section 9 –

Vinton Cerf: Is this an interrupt on the ALAC matter?

Andy Mueller-Maguhn: Oh, sorry.

Lyman Chapin: (Inaudible.)

Andy Mueller-Maguhn: Oh, okay.

Lyman Chapin: Sorry.

In that same section, which is Section 2 of Article XI, I would like to ask the Board if it would be appropriate to make the following change to the new clause f, which begins:

"subject to the provisions of the Transition Article."

And Louis, do you have the text I just sent you for proposed –

Louis Touton: It's not convenient for me to read e-mail.

Can you read it?

Lyman Chapin: I'm just wondering, what's the best way –

Louis Touton: If someone can go up – do you have a document in your hand?

Or you can e-mail it to andrew.

Vinton Cerf: First of all, this feels a little out of order, because Andy was walking through a series of proposals. So it's –

Lyman Chapin: I thought –

Andy Mueller-Maguhn: But, wait. If he – what I said last is that I don't have a concrete suggestion. So if you have one, of course I'd like to hear that. Because I – I just didn't find the time to work one out. So if you can provide one, please, I'd like to get it.

Lyman Chapin: Yeah, I'm sorry, I didn't realize the order in which you were – I thought it was appropriate to introduce it at the point at which we were discussing a –

Vinton Cerf: I'm sorry. I didn't notice this says "At-Large Advisory Committee."

Fine. Go ahead, you're in order.

Lyman Chapin: Okay. I can probably read it, which may be sufficient under the circumstances.

Louis Touton: Just give me a moment here to set that up so I –

Lyman Chapin: And you can sort of type in real time.

Louis Touton: Yeah. Okay. I'm ready. I'm going to do the second one.

Lyman Chapin: Okay. The – item f, subject to the provisions of the Transition Article of these bylaws, that hasn't changed, the At-Large Advisory Committee may from time to time designate a nonvoting liaison to each of the supporting organization councils and advisory committees to the extent that the At-Large Advisory Committee deems it appropriate and useful to do so."

The change being that the opportunity for the ALAC to appoint a liaison is not limited to the GNSO council.

Louis Touton: I'm sorry. "to the extent"?

Lyman Chapin: To the extent that the At-Large Advisory Committee deems it appropriate and useful to do so.

The language, of course, is copied from the same section in the GAC description.

Stuart Lynn: Lyman, is this addressing Andy's point or is it another point? I'm confused.

Andy Mueller-Maguhn: I'm confused, too, to be honest.

Lyman Chapin: If you think it's two different points, I can withdraw it and do it later. I – I thought it was relevant to your point. But it may not be.

Andy Mueller-Maguhn: I thought you were addressing the funding question.

Vinton Cerf: That's – all right. I thought that we were  – I thought you were going after the funding question. And that's not exactly what this does, or is it? Where are you going with this? That's it? You're just extending the –

Lyman Chapin: Yeah, that's it. I thought you were concerned with limitations on the ALAC in general.

I can withdraw this and introduce it at a different time.

Vinton Cerf: I think that would be cleaner, if you don't mind.

Lyman Chapin: Yeah.

Andy Mueller-Maguhn: I don't object to it, I just –

Lyman Chapin: Yeah. I don't want to get you off track with regard to what you are trying to do. So I will set it aside for the time being.

Vinton Cerf: At this point, we don't have any proposed text for the funding question. And we put this off to a discussion about ALAC in, perhaps, December.

Andy Mueller-Maguhn: Okay. Then I have my last point. That's Article XIII, Section 9, that's this new added paragraph about conflicts of interest, saying the Board, through a committee, designated for that purpose, shall establish a policy requiring a statement from each officer and so on.

I would like to have this a public statement, maybe Louis, you can assist me with the wording. I want to have this publicly available, either as a public statement or to have this whole thing being published on the ICANN web site. I don't know what's the better way for wording. But I thought making it a public statement might be the – yeah, right. Yeah, publicly available statement. That's fine for me.

Because conflicts of interest, I guess, is a serious concern outside of ICANN people dealing with ICANN, handling ICANN officers.

Vinton Cerf: Alejandro.

Alejandro Pisanty: I am afraid this may have very serious privacy implications.

We certainly have to make sure that this information is made available to the committee on conflicts of interest. But it would be unduly hasty to write this into the bylaws at this point.

Stuart Lynn: Technical question.

On the – without my scrolling through, maybe Louis could answer quickly. The requirement for directors' statements?

Louis Touton: Well, both of the bylaws provisions, both the one that is currently in place and relates to Board members, and this provision, which is proposed to be added related to officers, speak in terms of the Board establishing a policy about conflicts of interest.

The Board has established such a policy that covers both officers and directors. And it seeks to require a fairly broad level of disclosure of things that might pertain to the corporation's businesses, and accordingly, the structure of it is that the information is provided confidentially to the conflict of interest committee, which makes determinations as to whether something is a problem or not and deals with it.

The view of this kind of conflict of interest policy, which is quite common, is that people, either as Board directors or officers, would be unwilling to disclose all of their investments that may have any possible relationship to ICANN, but might not, on closer examination, in the public.

Andy Mueller-Maguhn: But it would help us as a safeguard to get knowledge about any kinds of things that we are missing in the self-description of possible conflicts of interest.

Vinton Cerf: That could very well be the job of the conflict of interest committee to probe that matter.

But to make this public I think would be – have a remarkably cooling effect on the interest of people serving on the Board. Paragraphs I have Stuart and then Karl.

Stuart Lynn: This is not a personal thing because I'm happy to tell you anything you want to know, because I don't have any conflicts of interest. It's not a problem for me to say that and show it to the world. The problem is the subtleties are a little more complex. Without being in a policy framework, you get into all sorts of issues of does owning one share of VeriSign constitute a conflict of interest.

And as has been pointed out, directors might not be willing to disclose on what can affect (inaudible) on their entire public holdings, just because they own one share of VeriSign or whatever. Don't want to pick on VeriSign.

Perhaps the proper place for this to be dealt with is in the policy itself, as I think Louis is suggesting. And the policy is something that can come before the Board. And if, Andy, you disagree with that provision, then the place to deal with that is in the policy discussion.

But I think it's wrong to deal with it in the bylaw because it would have a very chilling effect on directors as well as potential officers, too.

Vinton Cerf: Karl.

Karl Auerbach: Yeah, as being part of the conflicts committee, this is an issue of sufficient import that I don't think it's something that should be decided by the conflicts committee. I believe it belongs here in the bylaws.

Speaking to the actual item here, I do believe that we should be making public disclosures, even if that does have a chilling effect. I think it would improve confidence in ICANN.

Vinton Cerf: Sang-Hyon.

Sang-Hyon Kyong: I have been waiting for quite a bit of time to raise another – offer another amendment on a totally separate point. So –

Vinton Cerf: Yes. I have –

Sang-Hyon Kyong: I don't know when to do it.

Vinton Cerf: I have you on the list. In fact, I'll tell you –

Andy Mueller-Maguhn: Maybe we can just make this a vote, and if this vote does not show that the majority of the Board is okay with that public thing, then I will ask the conflicts of interest committee to address it as a policy matter.

Vinton Cerf: That would probably be a cleaner way of dealing with it at this point.

Would you like to –

Andy Mueller-Maguhn: Still I'm asking for a vote to have that clear view of the public as to who here –

Stuart Lynn: Can we see the exact wording that Andy is proposing as an amendment.

Vinton Cerf: That's what it sounds like to me. And Karl spoke in favor of that. Can I assume that's a second, for purposes of having a discussion?

Karl Auerbach: (Nod of the head.)

Vinton Cerf: All right. Is there any further discussion of this particular proposed amendment to the conflicts of interest provision?

Andy Mueller-Maguhn: Is it explained to Ivan?

Vinton Cerf: Ivan, are you there? Does it make sense?

Ivan Moura Campos: There's no need. I'm following.

Andy Mueller-Maguhn: Okay. Just wanted to –

Vinton Cerf: All right. In that case, Linda, you had a comment.

Stuart Lynn: Oops. I have one comment, is, I would have to vote against this, not necessarily on the substance, although I could vote against it on the substance, too. But if it should be here for officers, it should be there for directors, too.

And we're only changing it in one place in the bylaws.

But if that's the amendment, that's fine. But I would vote against it because it has to be all or both. – or nothing.

Vinton Cerf: Linda had her hand up, and then Karl.

Linda Wilson: I'm very familiar with the issue of conflict of interest and the importance of our generating trust in ICANN's Board and staff.

Many, many public organizations require disclosure as a major part of ensuring that conflict of interest issues are dealt with properly.

However, in almost all cases that I am aware of, when there is disclosure, it's disclosure of matters that have material import, not – which is very different from disclosure of all.

And I think that I will vote against Andy's suggestion in this case. But I wanted to make sure that it is – because I prefer to see the conflict of interest committee discuss and bring back to the Board the policy issues and the importance of disclosure without its being carried to an extreme, which I believe would be an unintentional extreme.

Vinton Cerf: Karl.

Karl Auerbach: Yeah, Linda's point has a lot of merit. And there's another aspect to it.

Although I do – and I will vote for – yes for this. But I have a concern that this kind of thing, we shouldn't saddle Directors with this kind of obligation until they've agreed to – I mean, we came on to this Board with certain expectations and understandings. And this is a fairly substantial addition to the obligations of people who are already here.

And I would think that – I don't know how to express this thought, but it should apply only to people who are coming back on the Board after some break in the term, or new term Directors. So there's an implicit acceptance rather than being applied on people who are currently sitting.

Andy Mueller-Maguhn: Maybe we can streamline this a little bit. I have the feeling that some of your concerns come from the idea that I am asking for your publishing all your relations and money transactions. I am just asking for a publicly available statement setting forth all other business and other affiliations which will relate to the business and other affiliations of ICANN. I am not asking about all the other stuff. I am just calling to streamline, not to spend the whole session here on this and a vote on this.

Vinton Cerf: I understood that.

But the problem is that for a great many people, almost a significant fraction of their work is related to ICANN.

Stuart.

Stuart Lynn: This discussion just emphasizes the difficulty of doing complex bylaw changes on the fly.

I heard Karl talk about Directors, whereas this resolution only applies to officers. It doesn't apply to Directors.

I think it does require a statement from each officer. There's another place in the bylaws that deals with Directors.

It's because of this confusion that I suggest this be taken off the table for now and this point be looked at quietly and it can be considered again.

If Andy wants to do that by having it voted up or down, that's fine. But I would encourage you to think about this as a complex issue that should be dealt with off the table. For now.

Vinton Cerf: Preferably by the conflict of interest committee.

Jonathan.

Jonathan Cohen: I'm just – just very briefly, I think I have every confidence that this issue can be properly discussed between Karl and I, who are often, I'm sure, both sides of the story, will get fully discussed between Karl and I. And I would call for a vote.

Vinton Cerf: Okay. All those in favor of this amendment, please raise your hand. One, two. Three.

All those opposed? I'm sorry. Let me get Ivan. Ivan, what's your vote on this?

Ivan Moura Campos: I vote no.

Vinton Cerf: Okay. All others voting no, please raise your hand.

Okay. Are there any abstentions? One abstention.

Stuart Lynn: Only because I'm an affected party.

Vinton Cerf: Okay.

I think we will remand this to the conflict of interest committee.

And that, I think, completes all of your recommended modifications.

Andy Mueller-Maguhn: Yes, that completes them. I just have one more question.

Excuse me.

And that is this, what we are doing here right now is taking place under the old bylaws; right?

And we just adopted yesterday some, I think, major changes that came from the GAC.

So what I am asking is, Article III, Section 3 of the bylaws being in place right now, I'm not talking about this new version, say that with respect to any policies that are being considered by the Board for adoption that substantially affect operation of the Internet or third parties, I think what the GAC asked us to do is provide public notice on a public web site and so on. So there's some safeguards that we don't just accept that kind of policy.

My question is, can we just accept or shouldn't we, applying the bylaws at this point, which might affect that we have to withdraw some of the changes?

Vinton Cerf: Actually, the fact is that none of these things take effect until the Transition Article is done, which won't be done until some time in December. So we will be publishing all of this material. It'll be open for comment between now and that time. So this is a provisional adoption of the bylaws, not a final adoption of the bylaws.

Andy Mueller-Maguhn: Okay.

Vinton Cerf: So – sorry.

I – let me say who I have on the list right now.

We're popping up a level.

I have Alex, Nii, Sang-Hyon, Karl, and Rob.

Rob Blokzijl: Point of order.

Five minutes' break?

Vinton Cerf: Aha, I see there is a certain distraction here among the – why don't we take more than five. Let's take 15 minutes  –

Stuart Lynn: Can we take a vote on that?

Vinton Cerf: I don't think I'll have any objections.

All right. Let's break until 11:15.

(Break.)

Vinton Cerf: Okay.

I'd like to reconvene the Board meeting now.

I had been maintaining the list of people who had requested to speak, and after a long excursion with the changes that Andy requested, I have the following people on the list.

Alex, Nii, Sang-Hyon, Karl and Rob.

And also Stuart and Amadeu.

And so we will continue in the way that we have been going; namely, that if a Board member proposes a resolution or an amendment of some sort, we will process that, go through all the discussions, and then we will pop back up again.

So I now have on the list to speak, Alex, Nii, Sang-Hyon, Karl, Rob, Stuart, Amadeu, and Linda.

So Alex, it's you.

Alejandro Pisanty: I'll pass for now.

Vinton Cerf: Alex passes.

Vint cerf passes 2, no trump.

I'm sorry, we're not playing bridge.

Nii, you're next.

Nii Quaynor: Yeah.

I'd like to speak to the annex a referred to in the Section 6, policy development process, of Article x.

In the forum yesterday, it was well articulated that there were some elements that can (inaudible) participation by people far away from here, including developing countries, committing to schedules that in that particular annex. And there are parts that I think can affect minority opinions, such as majority votes and so forth. So I'd like to propose that we consider and factor it in our deliberations, but to some extent defer adoption of that particular section till we've had time to digest it and maybe modify the schedules, prove that particular content.

Vinton Cerf: If I've understood correctly, you're not suggesting a specific resolution modification now, but you want to draw our attention to the sensitivity and criticality of timing for that reason.

Nii Quaynor: Yes, that's correct.

But if someone has more precise wording of the resolution, I'll consider it.

But I just think it's a bit delicate to commit us to those kinds of dates and, in some cases, comments of majorities that can suppress, you know, opinion of minority groups.

That can only affect minority groups.

We need to allow more opportunity for some opinions to surface, even though they may not necessarily be majority.

And therefore, we should be cautious.

Vinton Cerf: Okay.

So I see the Chairman of the ERC nodding his head that he's understood that point and will take that into account.

Sang-Hyon.

Alejandro Pisanty: Nii is also a member of the ERC.

Vinton Cerf: You're also a member of the ERC.

Sang-Hyon, you've been waiting a long time.

Sang-Hyon Kyong: Thank you, Mr. Chairman.

Before I give the specifics, let me add my word of appreciation for the record for the tremendous work that the members of ERC and other large number of people have put in to produce these documents and bring us to this stage.

I have two problems, on which for one I'd like to defer to Rob Blokzijl who already mentioned something about this in the morning, which is on Article VIII, address supporting organization.

I'll leave that to him and go to Article XI, Section 2, item 1, Governmental Advisory Committee.

I refer to the comments that Katoh-san made this morning about the extent of – and the meaning of the undertaking that will commit ICANN Board by adopting the set of bylaws that include this Article IX, Section 2, item 1, and for that matter, Article XI-A.

The problem as Katoh-san mentioned, and I concur, the undertaking that we may be committing is really significant.

And with good faith on both parts, both sides, that is GAC and ICANN Board, the amount of and the intensity of the undertakings may be limited to a reasonable extent.

The specific point that I have some problem in my mind is this blanket reference to public policy.

Public policy, I – since the proposed additions and amendments by – coming from Governmental Advisory Committee, I would suspect that what is meant by "public policy" is public policy in effect at the time of consideration of any of these Articles, the invocation of any of these Articles. Within the entities countries or treaty organizations or whatever that are members of GAC, I find it difficult that they had in mind public policy issues in all such entities throughout the world, whether they are, at the time, members of GAC or not.

Temporary, too.

The public policy issues that – the public policy that are in effect at the time, ongoing.

Or do they really mean past policies?

Or policies under development or under contemplation?

I do believe that the meaning here is to limit the public policy of those entities that are members of GAC and those that are currently in effect.

And once that is clearly understood, I think the provisions of the set of bylaws concerning these two – that is, Article XI, Section 2, item 1, and Article XI-A, Sections 1, 2 will be reasonably acceptable to me.

Vinton Cerf: I'm still having some trouble understanding what changes you would want to make.

Are you saying that the –

Sang-Hyon Kyong: I now refer to a specific proposal for amendment.

In Article XI, Section 2, item 1, and Article XI-A, Section 1, items 2, 3 –

Vinton Cerf: Let's do these one at a time.

Sang-Hyon Kyong: And 4.

Vinton Cerf: Okay.

But let's look at these one at a time so we can see the text; otherwise, it will be very hard to understand for the secretary.

So let's go to the first.

Sang-Hyon Kyong: You'll get to see it.

I will give the reference later on, then.

In those paragraphs, all reference to "public policy" be changed to "public policy in effect in those entities that are members of GAC at the time of invoking the provisions of these Articles," these bylaws.

Vinton Cerf: Yes, go ahead.

Andy Mueller-Maguhn: So do you mean that the public policy matters should be reduced to those of the entities being in the GAC?

Did I understand that correct?

To limit the amount of whatever they could bring up?

Sang-Hyon Kyong: That is right.

The public policy being what they are, practically anything that one can think of, especially the ones that the ICANN Board routinely handles, can be public policies somewhere, someplace.

Vinton Cerf: This may be self-defining in the sense that this is a paragraph about the Governmental Advisory Committee Sang-Hyon Kyong correct.

Vinton Cerf: At the time anyone is looking at this paragraph, there are members of the Governmental Advisory Committee, and only members of the Governmental Advisory Committee are providing advice to us.

And so in some sense, this paragraph may be self-limiting only to those governments and participants of the GAC.

So we may not need to make as much a constraint as I think you want to do.

But I have several people who have raised their hands.

Amadeu and Stuart Lynn.

So Amadeu first.

Amadeu Abril i Abril: Sang-Hyon, I understand your concern but I think your wording goes in the contrary direction because it expands rather than limiting.

What we have here are the public policy issues either defined by GAC, as within the scope of the GAC within ICANN.

If you refer to the public policy issues in the entities, including the states that are members of GAC, this is much larger than those that are relevant for ICANN.

And they would be something that's the public policy of the individual entity would be relevant.

I think you're going in the other direction with your proposed language.

I think it's much more clear as it is now than with your language.

Vinton Cerf: Stuart.

Stuart Lynn: Yes.

I point out that in the organization that ICANN is anyone in the world, any community, any advisory body, any individual has, I hope, the right to comment or would comment on anything we do and post publicly at any point in time.

So the GAC, for example, is perfectly free to comment on anything that they wish to comment on, just like anyone else.

The question is at what point and how we receive their advice, and their advice would carry much more weight if it is a public policy matter.

If we think at any point in time they submit advice that it is not a public policy matter, then I think the procedure for dialogue with the GAC is the opportunity to sharpen and define that, to understand that.

But to try to define public policy in advance I think is a losing proposition.

Sang-Hyon Kyong: May I respond?

As an example, let me refer to this particular paragraph, Article IX, Section 2, item 1, and sub-item j, for instance.

That's at the bottom of page 36 that I have.

Advice of Governmental Advisory Committee on public policy matters, both in the formulation and adoption of policies that is, I presume, ICANN policies, shall be duly taken into account.

In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the committee and state the reasons why it decided not to follow that advice.

The Governmental Advisory Committee and the ICANN Board will then try, in good faith, and in a timely and efficient manner, to find a mutually acceptable solution.

In this paragraph I'll be much more comfortable, and I think it is correct to interpret the public policy matters to be limited to public policy someplace, some country that is a member of GAC, and the public policy that is presently in effect.

If we are leaving the room for this public policy to refer to any public policy that may be in effect or under consideration, under development anywhere around the globe, we seem to be leaving too much of a room, thereby undertaking too severe a burden to satisfy this particular provision of the paragraph.

Vinton Cerf: Let's see. Jonathan.

Jonathan Cohen: Well, at least I understand Sang-Hyon's point.

And I certainly – I would not want to leave a loophole the size of the Grand Canyon that would allow the Governmental Advisory Committee to, under the label of public policy, start dictating on anything and then force us to have negotiations.

I think we have to have certain recognition, however, that what Stuart said is correct. That I think that trying to define what is public policy, however well-intentioned it is, is not the way to go.

I think we have to have a certain amount of confidence that the GAC is good to its word. And we heard what Paul said. And that they don't want to meddle in things that are not public policy. I would point out there's very little under the sun that can't be put under the label of public policy from a government's point of view, especially when you're talking about 40 different governments. I expect spitting on the sidewalk would even qualify. It would be a health issue, of course.

Therefore, I think the better way to do it is to leave the language, but I think the warning from Sang-Hyon is a legitimate one. But the way to deal with it is, if and when the GAC ever were to present advice on a matter that we strongly felt was not public policy, to simply say so and say that we are not going to engage in dialogue because it's not public policy.

Vinton Cerf: We, in fact, have the option of responding to literally anything that the GAC proposes as a matter of issue for us. And not to take action and to explain why. And it might be because we didn't think it was public policy or we might not think – we might think it is not public policy relevant to ICANN's mission.

My guess is that an attempt to edit the bylaws in this area will probably not be effective, although the warning that Sang-Hyon is making, I think, is very relevant. But I'm not sure that the effect that you're attempting to get by editing the bylaws will be, in fact, substantive.

Stuart, did I see your hand up?

Stuart Lynn: Just briefly add to that, is I think that very paragraph gives us the option. Because one of the reasons we can give for rejecting the advice given is our view that it's not public policy.

And that could be discussed at the time and dealt with at the time, because it's gray areas.

And if the GAC doesn't come up with a good reason why it's not public policy, should we choose to reject their advice, we can.

Sang-Hyon Kyong: I put on the table a proposal for an amendment.

Vinton Cerf: Is there a second to the proposed amendment?

Stuart Lynn: May we have exact language, please?

Louis Touton: Yes. And if it's for every single provision, I am going to need to you point out each case. It needs to be precise if I am going to take notes.

Vinton Cerf: I'm sorry. That's right. So we don't – what you are just now asking us to do is to go through four or five Articles, make textual modifications to each one, and then have to vote on each one of those.

Sang-Hyon Kyong: I – my amendment is to change all reference to, quote, "public policy," unquote, in those paragraphs that I referred to, by public policy in those – in GAC member countries or entities in effect at the time of invocation of these paragraphs.

Vinton Cerf: I really want to have a discussion about this somehow without necessarily having to go through every single one of them to have a debate over the text.

So I'd like to ask Sang-Hyon a question.

If you limit the consideration of public policy to that public policy which is in effect at the time, the one thing that you may actually prevent is an opportunity for ICANN and the GAC members to talk about contemplated public policy. They may be planning to change public policy, and it might have an effect on the way in which the Internet operates.

We would want the opportunity to discuss that. And I think the text you're proposing or the change you're proposing might actually foreclose that. And I would recommend that we don't want to limit the discussion that we have with the GAC on such matters.

Sang-Hyon Kyong: Well, let me respond to that.

I think there was a misunderstanding of some sort between us. My amendment will not forbid or limit the GAC's right to make an advice or comments or whatever on public policy issues of any kind.

What I am worried about is the ICANN Board's burden to react to such advice in case the advice is on a public policy which is not in effect in any of the member countries of GAC at the time.

Vinton Cerf: Those may be precisely the things that we want to have the discussion about in order to effect the evolution of public policy in the GAC.

Karl, you had your hand up.

Karl Auerbach: Yeah.

Assume someday we actually have an ALAC that has public members involved. It seems when we're talking about public policy and dealing with it, that public there ought to be – have an equal role with the GAC.

Vinton Cerf: Well, let's try to deal with the specific proposal on the table, which I'm not sure I know how to deal with an amendment to that.

So let's go on to what Sang-Hyon is trying to get at.

And I notice that, Louis, you had what looked like an overarching text –

Andy Mueller-Maguhn: Can we get the concrete wording for public policy in bigger letters? Because I can't read the actual –

Louis Touton: I do think that would be helpful. I'm unable to craft it here.

Perhaps Dr. Kyong could give us exact – you know, what I heard him say is he wanted to replace the phrase "public policy" with the phrase "public policy of Governmental Advisory Committee members at the time of invocation of these paragraphs."

I have done a global replace, and it makes nonsense of the language to do that, quite frankly.

Sang-Hyon Kyong: In effect.

Louis Touton: In effect. It still does.

(Multiple people speaking simultaneously.)

Sang-Hyon Kyong: I am happy to listen to any suggestion for specific wording.

Louis Touton: Well, perhaps this really does need to be done each instance at a time. Because I think the context in which the phrase "public policy" comes up in these paragraphs the many times it comes up varies.

So perhaps – perhaps –

Sang-Hyon Kyong: Again, I'm sure the GAC and ICANN Board will act in all instances in good faith, in full respect and due attention to the workings, efficient workings of the organizations.

But just to – if I strictly follow the wordings, literal wordings of this paragraph, if, for some reason, some unknown reason, GAC wants to bring up an advice on a potential public policy issue in someplace, some new independent country near antarctica, ICANN Board is obligated to duly take into account, and if an action that ICANN Board takes is not consistent with that advice, then the ICANN Board is obligated to give the reasons for not taking that advice, and ICANN Board and the GAC are, in good faith, going to come up timely, in an efficient manner, with mutually acceptable solution.

That's what I'm worried about if we are – if we can be somehow with the appropriate language more truthful to what I believe is the intent of GAC's suggestion for this – for the inclusion of this paragraph.

Stuart Lynn: Mr. Chairman, on a point of order.

Vinton Cerf: Just a minute.

Let me suggest the following.

We've had a long list of people who want to talk. I now have an even longer list.

It seems to me that the attempt to edit this text at this time is very complex. And although the point that Sang-Hyon is making, I think, is quite valid, I'm very uncomfortable trying to make the modifications on the fly.

So I'd like to suggest that we note this as an issue and we remand it to the ERC to consider, but not try to actually do the edits on the spot because of the textual problems that we can see already coming up.

You know, if Sang-Hyon would be – if that's acceptable to you  –

Sang-Hyon Kyong: I'm amenable to it. Fine.

Vinton Cerf: That – okay.

So now – yes, I have you on the list, Hans.

Excuse me?

Hans Kraaijenbrink: I have a reaction on this. This point, this specific point. I have not a generic point, but I want to debate the issue.

Because I do not quite understand the problem.

I see "public policy" as a generic term defining those policies which are governmental in general. And it describes the relation, as Stuart already indicated, the relation between ICANN and the governments through the Governmental Advisory Committee.

Vinton Cerf: Let me –

Hans Kraaijenbrink: So I believe there is no – no difference between public policies in countries.

Vinton Cerf: Okay. Let me – yes. I understand. And it is a generic term.

Let me tell who you is on the list right now to speak. And you can say whether or not you're still interested. Karl, Hans, Andy, Stuart, and Hans again. You have your hand up twice. And you just got to talk. So I guess that's done.

Karl, Andy, and Stuart so far.

Karl.

Karl Auerbach: Okay. The term "public policy," I don't see anything that isn't public policy. I mean, ultimately, governments could even kill us if we wanted.

And I live in a country where, to give an example, tobacco, our federal government pays tobacco growers and pays people not to smoke, and I live in a city where smoking is banned in restaurants. What is the public policy? It's an extremely difficult term to measure, evaluate or determine what it actually is.

Vinton Cerf: Many of us have that same reaction.

Stuart.

Stuart Lynn: (Inaudible.)

Vinton Cerf: I lied. Andy was next, then Stuart.

Andy Mueller-Maguhn: Sang-Hyon already agreed, I guess, to have this wording worked out at a later point.

I think I understood now the point. And that is – and maybe we keep that on our agenda for a later point to be addressing. That is that all ICANN policy or possible policy that we are about to make respects the sovereignty of affected countries, for example, or entities in the – or international entities.

Because I think that's – I even could think about this to be core values of ICANN, because this is still a california corporation acting on behalf of the united states government department of commerce, and very often giving people the feeling that the united states department of commerce's policy is getting effectively applied to other countries. And I strongly – I would disagree with any kind of united states government you see and so on.

So I think this is a very important point. But it could be, as well, maybe some of you can agree to that, a core value that we pay attention to this.

Vinton Cerf: I think we'll remand this to the ERC for further discussion.

Stuart.

Stuart Lynn: Just going to suggest just that, that it's too complicated to do on the fly. And Sang-Hyon has kindly agreed to this process. And we should follow that now.

Vinton Cerf: Okay. Thank you.

Alejandro Pisanty: I will personally undertake to interact with Sang-Hyon in order to get this point clear and see what we need to be doing.

Vinton Cerf: Thank you, Alex.

Karl, you are actually on the list.

Karl Auerbach: Is this for generic discussion now?

Vinton Cerf: We're back up – popped up to the top level again.

Karl Auerbach: Hang on just a second. Let me close this window.

I have a specific text to propose. I want to just find where to point Louis at.

Go to – point your browser at www.cavebear.com/tmp/amend –

Louis Touton: Just a moment. Let me –

Karl Auerbach: I can read it again. You want the whole thing? It's actually –

Louis Touton: What – can I get there from the cavebear page?

Karl Auerbach: No, you can't.

Louis Touton: Okay. What's the rest of the url.

Karl Auerbach: /tmp/amend.txt. Put a slash after the "amend."

Louis Touton: Like that?

Karl Auerbach: Amend.txt. And there's no slash at the very end. Sorry.

Louis Touton: Okay.

Karl Auerbach: There it is.

Louis Touton: Let me make it bigger here.

Vinton Cerf: Let me make sure I understand, Karl. The text that's on the screen, which we may need to read for Ivan, is text that you're proposing; is that correct?

Karl Auerbach: This is text of an amendment, yes, to the proposed bylaws.

Louis Touton: Hold on a moment. Let me get it into word.

Ivan Moura Campos: (Inaudible) (feedback).

Karl Auerbach: I didn't mean to cause this noise.

Vinton Cerf: Ivan, are you still there?

Ivan Moura Campos: Yes, I am.

Vinton Cerf: We're e-mailing you the text.

Ivan Moura Campos: I got the url here.

Vinton Cerf: Okay. You're ahead of everybody, then. Good. All right.

Karl, would you like to address what this is about.

Karl Auerbach: Okay.

One of the concerns I have about ICANN is the fact that we have a volunteer Board which creates, in essence, a strong management. And I believe we have an imbalance.

And what I am proposing here is a mechanism to try to redress that balance by making the President – still retaining him as a Director, but a nonvoting Director. So he can attend the meetings and all that sort of thing.

And also removing the power that derives from being on the various committees. Of course, he's welcome to be invited to the various committees to speak and try to convince the members, but not a named member of the various committees.

And the second amendment down there is merely to amend the quorum requirement, consistent with the above portion.

It's, to my mind, a fairly minor thing. And some corporations in some places follow the practice of putting Presidents on Boards of Directors; some in other places do not.

I believe that ICANN is a sufficiently unique case that we don't necessarily need to follow American practice or anybody else's practice, that we really should look to how to balance the roles here.

Alejandro Pisanty: Is there a second?

Vinton Cerf: Go ahead, Alex.

Alejandro Pisanty: I mean, if – there is a second, so  – there is.

Vinton Cerf: I'm sorry. Is there a second?

Oh, okay. So we can now discuss this.

Jonathan.

Jonathan Cohen: No, not second. I'm not seconding it and I'm not thirding it.

I – an interesting proposition. I think that it's like – a little bit like Sang-Hyon's. It's extremely – it's a very difficult question. And I think if the Board, in its wisdom, decided that it was time to consider the role of the CEO and whether he or she should perform that duty differently, ex officio, or on committees, or not, then it's a discussion that should be had. But absolutely we are not ready to have a 15-minute discussion here today and amend something so fundamental.

And the most I would be willing to do is to put it on a note for discussion, not even by the reform – I don't think it's even an ERC thing. It's a much more fundamental question about operations of the corporation that maybe should be discussed, but not here and now.

Vinton Cerf: Okay. Karl, Frank, and Alex.

Karl Auerbach: Just want to point out, I think I first raised this issue in responses to the green paper. So it's not anything that's new coming out of me, anyway.

Alejandro Pisanty: Frank.

Frank Fitzsimmons: I didn't hear anything on this issue at the public forum yesterday. Just a question, I guess, for the ERC folks. Was there any public comment or any – any drive towards this sort of structure, or a concern about this issue, during the ERC?

Alejandro Pisanty: I don't recall exactly. I was checking my archive yesterday, my files. And I have over – I have close to 3,000 e-mails, different postings, on the ERC. And I don't remember a number larger than one of comments on this. And they were not suppressed in the public forum.

Vinton Cerf: Just a minute. A small point of order.

Ivan did not get the – the url did not resolve for him.

So would you just e-mail that to him?

So, Alex, Ivan – Ivan, Alex is going to e-mail the text to you.

And I saw Lyman's hand.

Lyman Chapin: I'll just respond to Frank's question.

I cannot say how many comments there may have been, because as Alejandro pointed out, there were thousands of comments that we had to look at in the ERC. But I will say I know there was at least one. In other words, I was aware of the issue showing up in the comments, but I'm not in a position to say how widespread it was or how many comments there may have been on the issue.

Vinton Cerf: Amadeu.

Amadeu Abril i Abril: Okay. This concrete proposal perhaps has not, you know, received wide comment or attention during the public comment period. But what's clear is that we all have, you know, heard many times concerns in one sense or another about the relationship between the Board as appointed by the participants and the hired staff.

And I think this is just one possible (inaudible) of one of the possible things. We need a more general plan to redefine probably the relations.

I am, in principle, in favor of these positions, because it also fits into many of the traditions of the companies I know.

But it's only a part, I would say. It doesn't solve the problem, in general, that has been addressed.

Vinton Cerf: I would interpret some of the comments, Karl, as suggesting that this deserves some serious consideration, but perhaps more than a text modification during today's editing session.

Karl Auerbach: I agree with that reading. However, I would still like us to continue with the vote on it.

Vinton Cerf: Yes, I –

Karl Auerbach: Probably vote it down. But I would – I agree with your interpretation.

Vinton Cerf: I don't have a problem with that. Just speculating that no matter how this vote goes, I think the comments that we've heard suggest we should consider more broadly the relationship between the Board and the staff than just this particular modification.

So are there any other – Alex.

Alejandro Pisanty: I think this point points on several others, a very important point.

It was not within the perceived purview of the committee. We have received – the exact number of comments must be one, since Lyman remembers one and I remember at most one. And probably it was. So we may be off by two or three comments.

But this is more a corporate governance issue than a Board policy making structure, et cetera, and rules issue that we have not considered in detail at this point.

And I would like to propose to you, Karl, personally that we do not have a vote on this. Because the problem I have with some of the votes on these issues like the ones we have had on Andy's motions is that if you read them politically, it turns out that we are a very reactionary Board, throwing down everything you or Andy put forward, and then in a sneaky way, coming back to say, hey, you are nice, you weren't that wrong, and later, down the road, we bring up those points and accept them.

And I think that's not the way things are happening.

And it's not right to get them on the record that way.

I think that in this case, we should say we are going to give some serious consideration to this point. This is such a deep and wide-ranging point that we move it further down in the agenda. And that's a consensus position of the Board. And we don't get into these votes where we have to vote against it in order to be able to consider it properly.

Vinton Cerf: I have Karl and then Jonathan.

Karl Auerbach: My concerns for what were said – behind making this motion has been satisfied. The mere fact that we will consider this in a broader context satisfies me and I am happy to withdraw it given that I feel satisfied that we will pick this up later.

Vinton Cerf: Okay. Thank you, Karl. Jonathan.

Jonathan Cohen: Karl's withdrawing it takes care of it.

But I remind the Board that Linda last night said she's already working on a possible method for looking at the entire corporate governance of the corporation, including relations with staff, CEO, Board management, populating committees, et cetera. So that seems inappropriate.

Vinton Cerf: This may come up later in this agenda.

Jonathan Cohen: Yes.

Vinton Cerf: Thank you very much, Karl.

Rob, you actually were on the list. So we'll pop you up.

Rob Blokzijl: Since some time ago. Yes.

I – in the first place, I would like to congratulate the ERC and ICANN staff, who have done, I think, an incredible job, which has resulted in a very well-thought-of document. I want to make that absolutely clear. I have, actually, no fundamental problems or detailed problems, even.

I think it's a beautiful instrument. But as I said earlier today, I don't know what we are going to use this instrument for in all details. And it might be that we end up with a well-designed hammer, and in a couple of weeks or months what we really need is a well-designed screwdriver.

As I said earlier in this meeting, I am deeply worried not with any particular details of this version of the proposed new bylaws. I am worried about the white spots on this map. And I see a couple of white spots, as I mentioned already. Not directly reflected in these proposed bylaws, but reflected in their own statement. It is the position of the IETF as one of the crucial technical constituencies or crucial technical groups on the Internet. The same goes for the country code names supporting organization, which is truly reflected in the proposed text in front of us, because it has to be supplied. And the addressing supporting organization, where I even have deeper worries, because there is a text there; there is no such organization as meant in the new framework.

It does have a qualified subject to continuing discussion. I thought that applied to this whole set of bylaws. This is not the final time you will discuss them.

So I – my worry is that there is a piece of text here, the whole of Article VIII, which I think should be removed because it is more a stumbling stone, blocking factor than that it helps in reaching the support of the RIRs for our reform.

And by removing that, we actually are not doing anything fundamentally different, because we are doing nothing else than treating them as another nonexisting supporting organization, ccNSO, where we say to be supplied. And I see nothing wrong with that.

Vinton Cerf: Stuart.

Stuart Lynn: Thank you, Mr. Chairman.

Two points. One is that – Rob, I understand why, because I will interpret in a moment – he talks about the IETF. I just want to point out that there has been distributed to the Board (inaudible) chair of the IAB indicating satisfaction with the changes being proposed in the bylaws on behalf of the IAB.

Now, Rob may be referring to some kind of more spiritual kind of support, and I understand that.

I have to say that that has to vary from individual to individual. I have met a number of individuals who are actually quite supportive.

So it's difficult to assess these things. But I do want to say that the only – I have two points, please.

Rob Blokzijl: Okay.

Stuart Lynn: The only formal response we have received from the IAB is one accepting the changes that have been made in the bylaws

The second point goes to the substance of Rob's remarks, suggestion that eliminating the language about the ASO and making it parallel doesn't quite work, because unlike the ccNSO, which doesn't yet exist, we do have an agreement in place and a memorandum of understanding with the ASO which is still in force.

No one has canceled that, and all of this – this is doing is carrying forward the existing bylaw language, which doesn't govern something that is in place. It would be a big gap in the bylaws if that were eliminated.

I think the way it is right now, Louis may wish to opine on this, is technically the correct way to deal with the issue. Thank you.

Vinton Cerf: Alex.

Alejandro Pisanty: Rob is right in the basic statement that these are still voids to be filled.

We are working very intensely from the ERC – I will speak from the ERC side. We are working very intensely with all three parties.

I think that the statement by – by – with all those parties.

With the IETF/IAB, I think we are building upon – not only building upon Leslie Dagle's statement that Stuart has mentioned, but, in general, with the very intense work that has been going on around the liaison group. You can realize this is one of the parts of the draft bylaws that have evolved more because even changed names, changed conceptually and substantially due to these discussions.

So while there may still be much to flesh out, it has converged to a significant point.

The ccNSO is, as Stuart has correctly underlined, an organization in formation.

It's not there, so therefore we can be freer in just leaving the space in the text, a placeholder.

It has been evident in the public forum yesterday and in a number of events and talks during this week that there is an exchange with country-code top-level domain managers and in other people like this in aiding and helping both the ccTLDs and the rest of the ICANN structure in coming to a functional and well-agreed structure.

And I will never hail victory, even after I see it, but I think we can trust that we will have a ccNSO that will not – let's say whose creation, once we bring in the bylaws language into this – not to (inaudible) bylaw language, but once we get bylaw language here, it most probably will not cause an explosion in the rest of what we have brought in.

That is, it won't change fundamentally the nature and rules of the GNSO.

It won't change from fundamentally the transparency, accountability rules.

It won't change the IRP.

It won't change those things so dramatically that they will just blow away.

So we can trust that side.

And for the RIRs, which are also, of course, a key component, let's not be naive or complacent and think that just by keeping the present day, the bylaws are solving a problem, but that's of course a necessity in order to keep working with the formal part of the ASO, within the bylaws, and with dealing for the further form of interaction with the RIRs in ICANN.

There has been very intense work during this week.

We have met with the RIR leaders present in Shanghai for over – for a total of over – I would say the full ERC has met with the RIRs present here for over ten hours this week, and there have been further contacts that must total 30 or 40 person hours during the week.

So we have looked at many different versions of the form of the interaction that has to take place, and even more of the way it can be described in writing.

And all parties are leaving ICANN with several different versions.

We have identified many sources of mutual goodwill besides the ones of general goodwill that exist.

And we're going to continue working very intensely with the RIRs in the coming weeks.

We foresee an occasion in the near weeks using the occasion of the LACNIC meeting where many people will be face to face and others will be teleconferenced.

I don't want to be naive or over confident but I think however original and different from the rest this can be and, and we're creating some symmetries here in a differentiated way and that's already a breakthrough.

However different this will be, again, it doesn't seem to be threatening to explode the existing draft bylaw language on reconsideration and transparency and accountability, nominating committee, the general structure of the Board, et cetera, et cetera, et cetera.

So again, I think that we can trust that there will be two trees to hang on and we will not find ourselves sitting on a screwdriver at the end of this, which would be an undesirable consequence.

And I call on you also because you are a prominent member of several of these – or contact point for several of these communities to aid the ERC in its contacts and to promote the finding on renewing and refreshing these sources the goodwill within the RIR and the technical community.

I will therefore appeal for you – having expressed your conditions, which are very significantly taken in by the ERC and by the rest of the Board to support the work that we are continuing to do, both with these interactions and with your vote for the draft bylaws, because these voids are not so critical as to preclude the progress in the other areas.

And I'll leave it there.

Vinton Cerf: Thank you.

Lyman.

Lyman Chapin: I'll pass.

Vinton Cerf: You pass.

Okay.

Sang-Hyon Kyong.

Sang-Hyon Kyong: I defer to Rob's proposal to strike out Sections 1 and 2 of Article VIII, that is ASO, and replace instead that by a phrase "to be supplied" just as it appears in the next Article on ccNSO.

I don't quite agree with Stuart's interpretation of where the ASO stands, and perhaps will stand, and what the relationship governing between ASO and ICANN will be.

We have the relationship established, ASO in existence, and that relationship is being presently governed by memorandum of understanding.

And that memorandum of understanding sort of gave rise to the Sections 1 and 2 of Article VIII as proposed in the set of bylaws under consideration.

The fact of the matter is that that relationship between ICANN Board and ASO presently is in the set of bylaws that's in effect today, which will continue to be in effect until it is replaced sometime, perhaps, in December.

So there is absolutely no reason why it has to be repeated in the set of bylaws under consideration today.

Instead, if we simply recognize that the discussions, as Alejandro just said, the negotiations, discussions, are underway between ERC and RIRs that are making up ASO, a simple recognition will tell us that we are not – that is, the Board as a whole, we are not insisting or prejudging the form of ASO in the new ICANN; the relationship between ICANN and ASO in the new ICANN.

It seems to be a simple matter, to my mind, to recognize the fact that things are not formally settled; therefore, further consideration, further discussion are needed.

And an expression of that fact is as we have shown in Article IX – Article – I forgot which article it is.

The article concerning ccNSO, to be supplied, I think should be sufficient in the present set of bylaws.

Thank you.

Stuart Lynn: Point of order.

Are you moving an amendment, Sang-Hyon Kyong?

Are you moving an amendment?

.

Vinton Cerf: It was Rob that moved the amendment.

Rob Blokzijl: I thought I did.

Vinton Cerf: I think what Sang-Hyon Kyong has just done, in effect, is to second the amendment proposal, which is to strike the text of Article VIII.

Linda had her hand up and then Stuart.

Linda Wilson: I have a question.

It may be a question to our counsel, Louis, who is talking to our external counsel, joe.

The MoU that addresses the relationship with the RIRs, does it make reference to the bylaws, the Articles and the bylaws that are the subject of this debate?

Louis Touton: Well, not to this – it makes reference to ICANN's bylaws; that is, ICANN's bylaws from time to time as they may be amended.

If there were no bylaws about the address supporting organization at some point in time, as would happen if we transitioned into bylaws without an Article about the address supporting organization, it would make some aspects of the ASO MoU inoperative, such as the ability of the address supporting organization to appoint Directors to the ICANN Board.

Linda Wilson: I don't know whether there is a political underpinning of this discussion, whether it's a matter of sensitivity to where we are in the negotiations with the RIRs, but the sort of fundamental issue of whether we are leaving ourselves naked in a way that would not enable us to perform under the MoU where we have an agreement, if we deleted this, it seems to me a very critical issue.

I thought that's what Stuart was saying.

But I don't know that it's being heard or understood by Dr. Kyong or Rob, and they usually understand things.

So would somebody please help me understand this dilemma.

Vinton Cerf: Stuart was next, actually, and I think he'll be glad to help?

Stuart Lynn: I think I understand a little better what I think Sang-Hyon Kyong was saying.

Is that if we approve this amendment as proposed, the present bylaws are still in effect until the Transition Article is adopted December 15th.

So nothing would, in effect, happen between now and December 15th.

And I'm going to invite Louis to correct me if I'm wrong on any of this, because I'm not a lawyer.

But as I understand, the risk is that wherever one goes in these very important discussions with the RIRs, they may not be complete by December 15th.

And therefore, if a Transition Article were passed with this provision in there, we would slip into a situation that would be incompatible, as Linda has just elucidated, with the current MoU.

That's a risk that the Board may or may not be willing to run.

Personally, I think it is the wrong risk to run.

I think it makes much more sense to keep the current language.

And when and if there are modifications that are needed that come out of the important discussions of the RIR, then is the time to make that change.

But I understand that better.

I think that's what you were saying, Sang-Hyon Kyong, that the present bylaws in effect at least for a while would govern the current MoU relationship and I'd ask Louis to tell me if I'm wrong in that interpretation.

Louis Touton: I think you're correct.

Vinton Cerf: Hans, you had your hand up.

Hans Kraaijenbrink: Yes, it was in relation to what Linda was asking about the situation in discussions with the RIRs.

At least my interpretation from the ERC perspective is there is a common understanding that the address council and the address supporting organization, the RIRs, is an accepted vehicle which would continue.

The place and the responsibilities and the authority of this vehicle might be changed, but I have not noted any wish from their side to delete the address supporting organization as a constituent element of all of ICANN.

And there the situation is completely different, as Stuart explained, with the ccNSO.

Because they don't exist, that has to be developed.

So let's say the placeholder, as a continuation of this Article, also in the uncertainty whether we'd be able to conclude before the transition, it would be strongly advisable to keep the ASO Directors on the Board before the transition and after the transition because if there is no address supporting organization that could fall away.

And I think Louis will confirm that.

So I strongly advise the Board to continue on this basis and ask and instruct through your support of this the ERC to continue negotiations with the RIRs on this topic.

Thank you.

Vinton Cerf: Thank you, Hans.

Rob.

Rob Blokzijl: I think it's becoming, for me, rather serialistic.

I thought first you get an agreement with an important organization like the RIRs, and you understand – both sides understand what they want, and then you write it down in bylaws, and you don't do it another way.

Vinton Cerf: Sang-Hyon Kyong.

Sang-Hyon Kyong: Yes, I have would comments on the remarks Hans just made.

To be truthful to the situation that we are in currently, just like ccNSO is under development, I think ASO, if we want to call it that, ASO to be in existence in the new ICANN, reformed ICANN, is under development.

It is not going to be – well, we have not agreed to have it exactly saying ASO that exists today.

So in that sense, ASO in – to be effective in the new ICANN, is also under development.

And I think Linda was getting at the point, well, do we need such wordings, paragraphs, in the bylaws to keep the memorandum of understanding continued to be effective.

Again, I think our – I would like to ask the counsel whether the memorandum of understanding – if it continues to be effective.

At least its effective date is beyond December 15th; whether it's going to remain in force if we didn't have these particular paragraphs in the new bylaws.

Louis Touton: It would – the memorandum of understanding itself would remain in force; however, some aspects of it rely on the bylaws to have any effect.

One of those aspects, for example, would be the appointment of – by the address council of members of the Board, currently, three envisioned in these bylaws, to be reduced to two.

The council has in fact appointed such a person to take effect at the conclusion of the annual meeting.

If these go into effect without an ASO provision, presumably that could not happen and there would be a frustration of the purpose of the ASO MoU.

Vinton Cerf: I have an indication that Ivan wants to say something but he's having trouble getting our attention.

Ivan.

Ivan Moura Campos: Yes.

Thank you, Vint.

Can you hear me?

Vinton Cerf: Yes.

Go ahead.

Ivan Moura Campos: It's just a comment on Rob's proposal.

Article VIII is very small.

It just essentially says that the address supporting organization exists, there is an address council.

If we strike – is the objective of striking this out for now to consider the possible non-existence of an ASO and of an address council?

I think it's the kind of thing that Linda was trying to or attempting to verify.

I'm not understanding why is it so important to strike out something so simple.

Vinton Cerf: Let's see.

I actually have Alex next but let me make the following observation.

If we strike the language now and we don't come to a new set of arrangements with the RIRs by the time we want to adopt new bylaws in December, I think we will wind up putting the text that we are about to strike back in again in order to retain the ASO structure until we come to any new agreement.

So if we take it out now, we may put it back in in December, or we may replace it with something else.

So it seems to me, either way, we end up with some text.

Alex and then Rob.

Alejandro Pisanty: I feel that we have to look for the option that gives us – for the resolution of this point that leaves us the most options possible, the most ample maneuvering room.

It would seem to me, and as has been underlined, the part that we have here is a very brief and very concise statement.

Further, the – I'll come back to Rob's comment where this is surrealistic or realist.

I think what we're doing precisely is first get the agreement, then get the bylaws.

By the time we get the bylaws that derive from the agreement they'll be somewhat more extensive in the form of action, in the form of policy development, and in the form of interaction of the RIRs and the address community's operations.

What we have here is not only a placeholder like in the ccNSO case, but a little bit better placeholder which allows the ASO or the components of the ASO, if you want it, to exert the most action that is available at the present.

If we eliminate this, I would hate to see the risk that the action for the RIRs is reduced.

And therefore, I think that we should try to keep this text.

Put whatever number of brackets inside and around it is needed, and mostly the important part is, as you always call us to, to concentrate on the substance which is finding what the right agreements are that express both parts, both goodwill and possibility of collaboration and that's a work that goes on.

Vinton Cerf: Jonathan.

I'm sorry, I thought Jonathan did you have your hand up?

Oh, Katoh-san.

Stuart Lynn: Excuse me, you mentioned earlier that I was on the queue.

Vinton Cerf: Oh, I know what's happened.

When I saw – I thought it was Jonathan's hand, it was Katoh-san's hand.

Stuart, you're after Katoh-san.

Masanobu Katoh: I just wanted to have one clarification on the point just said.

If we do not have any agreement with – on the point of ASO by December, and you just said that we are getting the same language back in the bylaws at that time, do we need another public notice and the comment?

Even if we are getting that language back at that time?

If procedurally we need to have such public comment period or technical things, we can't put it back in, and we clearly have a vacuum from December.

And if that's the case, all we are talking about here is sort of a technicality.

I understand fully what Rob is arguing here.

But – and we don't have any much of a substantive disagreement.

But if – again, if that's the worst scenario in December, I'd rather put those language in as it's proposed.

Vinton Cerf: Okay.

Stuart.

Stuart Lynn: One could equally argue that taking it out right now would require public notice and comment as well.

That's an equally substantive change, and that's another problem that I have with doing this.

One of the things I should ask my fellow Board members is I'm not sure, except for clarification, that I've heard any new arguments in the last ten minutes.

I think the issues are quite clear, and I think there are valid arguments on both sides.

But I don't want to formally call the question, but I wonder whether we're at a point now where we might be able to vote on the amendment.

Vinton Cerf: We have one last comment from Lyman and Linda.

Rob Blokzijl: Excuse me, I thought I was also on your list.

Vinton Cerf: I beg your pardon.

Yes, you are.

Lyman Chapin: I think as we talk about whether or not we should be removing text or adding text, it's important to recognize that the text that's currently in the proposed new bylaws is essentially and almost literally the same as what is in Article VI.a of the original bylaws under which we're currently operating.

If the ERC had tried to insert into this section a bunch of new text that reflected some hypothetical idea that we had about the relationship that might exist under the best or some other combination of factors between the ICANN and the RIRs, then I would most certainly be agreeing with Rob that it was premature, because we haven't gotten to the point where we have that kind of settled agreement.

And so it would clearly be inappropriate to put new text – in other words, text different from what is in the current bylaws – into these new bylaws prior to reaching that agreement with the RIRs.

I don't think there's any question about that.

But that's not what we're doing.

We are simply retaining the description of the ASO that is currently in the bylaws under which we and the ASO are operating.

And on that basis I don't see any reason to remove that text in lieu of some continuing discussion.

We know that that discussion is continuing.

We know that there will be possible changes to or amplifications of what's in that section, but that will represent the first departure from the bylaws that currently govern our operation, rather than a back-and-forth kind of change that I think Rob is suggesting.

So I don't see any reason to make that change.

Vinton Cerf: Linda.

Linda Wilson: That was a very helpful clarification.

If the language were exactly the same as in the current bylaws, then it falls to a matter of consistency, that we are leaving all the bylaws that have not been the subject of the ERC exercise alone, making sure that they stay in place.

But there is minor change between the current bylaw on the address council and the new bylaw on the council, and I guess I would be interested to know from the ERC whether it would be acceptable to all concerned to go back to the existing bylaws so that we remove any notion that somebody is trying to slip something over or steer the outcome inappropriately.

Vinton Cerf: Rob is actually next, but it looked like Lyman was trying to respond to Linda.

Rob, is it all right if I let Lyman respond directly?

Thank you.

Lyman Chapin: Just a response providing information.

There are two ways in which the proposed new bylaw text for the ASO differs from the Article VI.a of the existing bylaws.

One simply recognizes that time has passed and there are some places in the original bylaws where it refers to "an organization that will be created." And that organization has now – has since that time been created and so the new reference refers to the actual  – so there are a couple of those.

The only other change, which is a substantive change, is adding to the description of the address council is there is a liaison to the address council appointed by the Governmental Advisory Committee.

And that of course is part and parcel of a number of the changes accepted by the ERC, proposed by the Governmental Advisory Committee.

And though I understand the logic of simply returning to a clean state of exactly what was in the 2000 bylaws, I'm not sure how I would deal with removing that particular reference to the appointment of a GAC liaison since it was introduced as part of another series of – we'd have to re-open, I think, another series of discussions in order to do that.

Vinton Cerf: Okay. Rob and then Stuart. And then we need to draw this discussion to a close.

Rob Blokzijl: I think we hardly have heard new contributions in the last ten minutes or so.

I want to – I have two short remarks.

It's clear this is not the current status. It's new text.

And it's, in the framework of this new set of bylaws, almost impossible to go back to the old text.

So another reason to drop all this text, given the fact that we are in the midst of negotiations with the RIRs.

Secondly, I am absolutely not concerned, I don't see the reasons to have some – any text here, otherwise we would run the risk, if we – in the absence of an agreement with the RIRs to have no text in December. I think in that case we have a much larger problem than a few sentences of text in proposed bylaws.

So I'm a bit worried that we are focusing on producing text instead of producing agreements.

Vinton Cerf: Stuart.

We have one little problem. Some of the Directors have disappeared.

But we have a quorum.

So why don't we draw this discussion to a close.

If you – the proposed amendment on the table is to strike the text of Section 8 – or Article VIII and to replace it with text saying that this is still a matter under discussion.

If you vote in favor of this amendment, then that text will disappear.

If you vote against it, the current text that's in place will stay there.

Bearing in mind this is not a vote on the entire bylaws, it's simply a vote on this one amendment.

All those in favor of striking the text, which would be in favor of the proposed amendment, raise your hand.

One, two, three, four, five, six.

Those against striking the text.

I get seven. Is that right?

Also we get Ivan, how are you voting on this?

Ivan Moura Campos: (Inaudible.)

Andy Mueller-Maguhn: Ivan, are you against the text or against the deleting of it?

Ivan Moura Campos: I'm against striking it out.

Vinton Cerf: He's against wiping it out. Okay. So that's eight are against wiping it out.

So that's 8-6. And were there abstentions?

One. I am not getting a – the numbers are not adding up. I think I want to vote again.

Let's do this one more time.

All those in –

Do you want to wait for Jonathan? Jonathan is – Jonathan is otherwise occupied right now.

(Laughter.)

Stuart Lynn: I think in the U.S. Government, this is known as a quorum call.

Vinton Cerf: Yeah. Okay. All right.

Let's do this one more time.

All those in favor – Jonathan, the – we're voting on this amendment.

If you vote in favor, we will strike the text. If you vote against, we will keep the text in place.

Ivan has already announced that he would vote no. He wants to keep the text.

All those in favor of striking the text, raise your hand. One, two, three, four, five.

All those in favor of keeping the text, raise your hand.

One, two, three, four, five, six, seven, eight, nine. And Ivan is ten.

All those abstaining?

One.

So that's 16. I'm still not – yes, I did. One, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15, 16, 17 – there should be 18 votes. This isn't working right.

In any case, it – the amendment does not pass. We keep the text.

Thank you.

I think the points that have been expressed in the course of this long conversation are still valid, namely, that we have a lot of work to do to sort out our relationship with the RIRs.

Karl.

Karl Auerbach: I'm assuming we're back at top level?

Vinton Cerf: Say again.

Karl Auerbach: Are we back at top level?

Vinton Cerf: Yes, we are. We're at top level. And Stuart actually  – you had another one?

Karl Auerbach: I have another proposed resolution. And I'd like to also mention it's also my last proposed resolution.

Vinton Cerf: Okay. That was it? You have one more?

Karl Auerbach: No. I was going to let Stuart go first and then –

Vinton Cerf: Okay.

Stuart.

Stuart Lynn: Thank you.

I do have what I think is two minor amendments.

It's been pointed out to me that contrary to what I understood this morning by a couple of people during the break is that we're inconsistent throughout these bylaws as to when we use the word "diversity," in many places we include "geographic diversity." At least two places I may have defined we do not. And it's been requested that we be consistent throughout.

The two places that I have been able to find, and Louis will have to do his own find on it, is Article v, Section 5, on international representation; and Article VIII, Section 5, which is on diversity, that we don't use the term "geographic." And it's been requested that we be consistent.

So, Louis, I have to ask you, assuming the Board agrees with that, what's the best way to go about doing it? My find is not always complete. I don't trust myself.

Louis Touton: Let me just – is the point of what you are looking for, Stuart, whether – places where there is "diversity," and to ensure that specific reference to "geographic diversity" in all places?

Stuart Lynn: Yeah.

Louis Touton: All right. And you mentioned Section 5 of Article VI.

Stuart Lynn: No. I mentioned Article V, Section 5.

Louis Touton: Right. Section 5. Okay. And then Article –

Stuart Lynn: V, Section 5.

Louis Touton: Article VI, Section 5?

Stuart Lynn: Well, maybe it is. It's the one headed "international representation."

Louis Touton: Right. No. I have that one.

Stuart Lynn: Okay. The next one is Article VIII, Section 5.

Louis Touton: Yeah. Okay.

Vinton Cerf: Stuart, just a point of clarification. Are you trying to strike the term "geographic diversity" or add the term "geographic diversity"?

Stuart Lynn: I'm trying to add it everywhere so it is consistently used.

Louis Touton: Could I have just a moment to consult –

Stuart Lynn: I'm happy to come back on this after Louis has had a chance to do a search so as not to hold the Board discussion up, as long as we come back to it as amendment to put on at the right point in time.

Vinton Cerf: I would note that earlier in the day we struck the term "geographic" –

Stuart Lynn: What was pointed out to me is it appears in at least six places, still.

And the request that I heard in the audience during the break was that it's important that we use it, because geographic diversity is an important concept.

Now, we might want to say "geographic and other diversity." That's up to the Board. But I just want to mention that we are inconsistent. We should be consistent.

Vinton Cerf: We'll come back to this when Louis's had a chance to deal with the locations.

Karl.

Karl Auerbach: Yeah. I made a mistake before. I have amendments, not resolutions. I have proposed amendments when we get done with this.

Vinton Cerf: You want to – we're pushing this one down in the stack until we can sort that out.

Are you worried that we're going to have a conflict with our editor?

Karl Auerbach: With Louis over there.

Louis Touton: Why don't we go ahead with Karl's, and then  –

Karl Auerbach: I was going to point you back to the same url with different text underneath it.

Louis Touton: Hold on.

See if I have still got it. Okay.

Karl Auerbach: Just do a refresh there.

Louis Touton: Oh, okay.

Karl Auerbach: Okay. This one was suggested to the committee. You just lost it.

Louis Touton: I am putting it in a word document because it's a little easier to deal with.

Karl Auerbach: Oh, okay. I think we can all use a 30-second mental break anyway.

Louis Touton: Okay.

Go ahead.

Karl Auerbach: Okay. The idea here is that to allow, essentially, the – again, I'm expressing the notion that we do have people who tend to be under – lesser-funded, let me say that, who may not be able to fully exercise the rights that we are trying to give people. So this is an amendment suggested by Bret Fausett which I think has a lot of merit.

And it's in the end there to allow ICANN to bear the expense of an IRP matter when the IRP provider decides that two particular conditions are met: That the request was reasonable and it was brought in the public interest.

I do not have any idea what the financial impact of this would be. My expectation is it would be reasonably small. But that's just a guess.

But I think it not only conveys a good message, but I also believe it will tend to make the IRP process more fair and that it will be open to everyone, even if they aren't necessarily financially well flushed.

Vinton Cerf: Alex.

Alejandro Pisanty: Is there a second?

Vinton Cerf: Are you – oh, you're waiting. Yes? Andy seconds this.

Okay. So we can discuss this more.

If I understood correctly, Karl, this proposal simply says that if someone brings an independent review panel issue to the table and fails, but it was under – but the IRP provider concluded it was a reasonable matter to have been raised, then ICANN would guarantee to pay? Or what is it that you want to say here?

Karl Auerbach: Well, not only that it was a reasonable thing, but it was also brought in the public interest. The two conditions have to be conjoined.

And that, in this case, ICANN would pick up the – the IRP provider cost. Not the costs of the – of the proponent himself or herself.

Vinton Cerf: The cost of the IRP, of the panel.

Well, since we don't know exactly what the financial implications are, this may be one of those things that we want to consider more deeply.

But it's not an unreasonable notion.

Karl Auerbach: Yeah. My feeling on this is we discussed earlier about – I'm just losing some – my train of thought here – but we discussed earlier some financial – potential financial assistance to ALAC and other people. And I think this may fall into the same category, where it's – I believe it's a very good idea, and we may have to put it aside and think about it in a broader scope, what is its financial impact, and have the finance committee review it.

However, I'd like to hear some discussion on this right now.

Vinton Cerf: Jonathan.

Jonathan Cohen: At first blush, it's something that sounds appealing. But I put back to you, what if the determination of the person hearing the dispute decided that it was unreasonable, in bad faith, and not in the public interest?

Would – would – is there some downside to bringing such a matter to the IRP?

In other words, what I'm saying is, yes, it sounds very reasonable to say that you don't want to discourage people from going to the process. And if somebody came in good faith on a reasonable grounds, in the public interest, maybe there's an argument for not forcing them to pay for it.

And I – it needs to be thought out. But as I said, there is another – there's a flip side to that.

What if somebody comes and the determination is that not only was it without merit, but that it was unreasonable and in bad faith?

Vinton Cerf: But the point here is that we don't bear the cost. That wasn't what Karl –

Jonathan Cohen: I understand. But in many cases where that's the case, the person bringing it is responsible for paying the other person's cost, not just the....

Vinton Cerf: In other words, this is – the point you're making is that on the other side of the coin, why should our resources be drained by let me just generally call it frivolous actions which cause us to execute an independent review panel action, costing money because each party pays his own. So this is the inverse of the case that Karl was describing.

Alex had his hand up. And then Linda and Karl.

Alejandro Pisanty: You already said it.

Vinton Cerf: Okay. Linda.

Linda Wilson: I'm wondering, Karl, if you would accept a friendly amendment that has ICANN sharing the costs as opposed to ICANN taking the whole cost of the provider under these circumstances.

The reason I say that is that ICANN doesn't have money of its own. We only have money that is provided to us. We have to be frugal in its use. If it's reasonable and it's in the public interest, I think we ought to share in the cost, because we have a great stake in the public interest and it being reasonable.

But this is a kind of brake on – having a cost at all is a brake on bringing these things forward. Let's share in that when a petitioner is reasonable and in the public interest.

Karl Auerbach: Yeah. I think that's a good idea, because it does put at least some portion of the cost on the person bringing the matter, which I think perhaps brings a degree of responsibility.

I think that's a good idea. And I would go for that.

I'll accept that.

Vinton Cerf: I'm still concerned about two things. One of them is that some of the Directors are going to have to leave at 1:30. And we need to get completed with all of our discussion of the bylaws so we can have a vote with the full Directors present.

So I'm going to suggest that this particular item may be better set aside and evaluated with the other matter related to the ALAC funding rather than trying to put it into the – into the bylaws at this very moment.

Karl, would you accept that?

Karl Auerbach: I think we're pretty close to answering it right now.

But I have no objection to doing that.

Vinton Cerf: My concern is simply to move ahead so we get a vote before people have to walk out the door.

So, in fact, Amadeu, you've been – we're popping up a level now. Did you have an amendment that you wanted to propose?

Amadeu Abril i Abril: No. My comment came just in line with what Nii said with regarding the two time frames in annex a. So it's already been said.

Vinton Cerf: Thank you.

Linda, you have an amendment that you wanted to point out.

Linda Wilson: Thank you, Vint.

An unintentional omission in the list of bylaws is to leave in place what is currently in the bylaws about the election of the chair and vice chair of the Board. This affects Article VI of the bylaws, and it – the statement could be the same as is in the old bylaws, Article VI, Section 3, item b, which now reads – which read "the Board shall annually elect a chairman and vice-chairman from the members, not including the President."

Exactly where that should be located in the proposed bylaws, seems to me it could be in Article VI, Section 1, or Section 2, or there could be a new Section 3 inserted before the current proposed Section 3. And I don't care where it is. I just think we need to get it back in.

Vinton Cerf: Seems like a very sensible observation.

I don't – yes, I don't see any objection to that from any of the Board members. We should have a method for electing officers of the Board.

Alejandro Pisanty: I take the friendly amendment.

Vinton Cerf: With the Board's permission, we'll place this wherever counsel suggests that is it be placed in the new bylaws.

Louis Touton: All right. Let me make a note of that, if that's....

If I can find....

Vinton Cerf: While he's doing that, that is the end of my list of people who are at the top level in the queue.

Lyman and then Stuart.

Lyman Chapin: Yes. I would like to propose the following motion, that we agree to revert the description of the address supporting organization, which is in – in the new bylaws is Article VIII, that we – returning to a discussion that we had earlier that was begun by Rob, that we agree to return, and I'll qualify that in a moment, that we return to the language that was in the original bylaws from – approved in the year 2000, pending resolution of an agreement with the RIRs, so that going forward, the bylaws would stand exactly with – with the following qualification, would stand exactly as they did before the reform process began.

The exceptions to that would be the following.

In Article VIII, Section 1, item 2, the change in the new bylaws simply recognizes that the memorandum of understanding which was anticipated in the 2000 bylaws has in fact been confirmed.

So the only change there is to refer not to a hypothetical future memorandum, but to an actual existing memorandum.

In all other respects, the text of the new bylaws could read exactly as it does in the old bylaws without affecting anything of substance in the rest of the reform effort, with the exception that, of course, we would be removing the reference to the GAC liaison.

Stuart Lynn: I second that.

Vinton Cerf: Okay. So we have a proposal on the table to put a slightly modified version of the existing bylaws into the draft bylaws to reflect the present relationship between ourselves, ICANN, and the ASO.

Sang-Hyon.

Sang-Hyon Kyong: Lyman, I have a question.

Wouldn't that drastically reduce the actual meaning of having these in the new set of bylaws?

Lyman Chapin: I don't believe so, because what it would do is it would preserve as a matter of principle the fact that in the reform process, until we have completed the – our efforts to reach new agreements, that we retain the existing old agreement, in other words, we don't try to make changes to things that are already in our bylaws until we have successfully completed a new negotiation.

So returning to the original text simply retains – because we do, in fact, as others have – as people noted earlier, we do, in fact, have today an ASO. We have, in fact, a memorandum of understanding with the ASO.

We're proposing to simply leave that unchanged in the new bylaws.

Sang-Hyon Kyong: But my understanding from listening to Stuart and Louis was that having this – this up-to-date – updated version will be a sort of – an insurance that ASO in the new context, new ICANN context, will still work in the event we do not come up with a new arrangement and therefore set of revisions to this.

If – if we are really going back to the old paragraphs, then that insurance really goes away.

Louis a few minutes ago, when we were discussing this, mentioned that ASO selected Directors, too. In the new ICANN environment will not hold water. And that's (inaudible).

If we did that, if we are really going back to the existing paragraphs in the new bylaws, then one way or the other, new worries will materialize, unless we come up with an up-to-date, revised set of paragraphs, would it not?

Lyman Chapin: It might be useful to actually put up on the screen what the new text would be. And it turns out to be very easy to do that.

Louis, if you simply go to Section 2 of Article VIII.

Louis Touton: Yes.

Lyman Chapin: Okay.

Louis Touton: I'm there and I have deleted the second sentence already.

Lyman Chapin: In Section 2, item 1, retain the first sentence without the concluding parenthetical –

Louis Touton: Okay.

Lyman Chapin: – clause. And strike the rest of that paragraph.

Louis Touton: But that's –

Lyman Chapin: Whole remaining paragraph.

Louis Touton: That's my conclusion as well, in comparing this, a little bit of renumbering. But it's of no substance.

Lyman Chapin: Right. And with only that change, the text will now comport precisely with the original text.

Vinton Cerf: Okay. I have Rob and Amadeu and Jonathan on my list.

Rob Blokzijl: Yeah, as I said before, it's – for me, it's still a bit surrealistic.

We have a new situation as far as the ASO is concerned. Any text that you put right now here is equally good or bad as any other text.

The only text that I think should be acceptable is to be supplied between square brackets.

Vinton Cerf: Lyman.

I'm sorry. It's Amadeu.

Amadeu Abril i Abril: Somehow Rob's direction, but perhaps a slightly different conclusion. The problem we have with the RIRs and the ASO has nothing to do with language, with materialization of any idea at this present moment, we are not there. It's a question of work, trust, interest, and attention. We don't have that. We should refrain from moving the text in any direction. Changing any, even deleting anything will not change the situation that is the relationship that is in danger now. It's not any concrete language to reflect a reality that's still not there.

So I will abstain as for the previous one. I think this is relevant to the current situation.

Vinton Cerf: Okay. Lyman, you're actually still on the list  – I'm sorry. It was Jonathan. I have two different lists going here.

Go ahead, Jonathan.

Jonathan Cohen: At the risk of prolonging a discussion I don't wish to prolong, I understand what you want to do, Lyman. I have absolutely no idea why.

Vinton Cerf: Okay. Stuart.

Stuart Lynn: I think I understand why. I think Lyman's acting through the principle of saying, look, the whole rationale for keeping it in related to keeping things going the way they were, status quo ante. And the new language that was proposed by the ERC has an extra little thing in there, namely a government liaison, that is beyond the status quo ante. I think that's a reasonable thing to do. I hate to see us repeat the same arguments all over again which we've already had.

I'd suggest that we just vote one way or another on this. The intent of Lyman's change is to really go back to the status quo ante, not to try and sneak something in.

If you want to do that, vote for Lyman's resolution. If you think it makes no difference, you may want to abstain. If you think that it's better to keep the government liaison in, which is a change from the status quo ante, then you'd vote against Lyman's resolution.

Vinton Cerf: Just for the record, did we get a second to this proposal? Linda. Okay.

Are we ready to vote on this? Everyone understands Stuart's summary?

Let me start with Ivan to find out which way Ivan wants to vote.

Ivan Moura Campos: I vote in favor of Lyman's proposal.

Vinton Cerf: Okay. So a vote in favor keeps the – installs, essentially, the status quo ante. For all those in favor of Lyman's amendment, raise your hands.

One, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, including Ivan.

Those against? One, two.

Those – three. No, two.

And abstentions? Two. Three. Sorry, three abstentions.

Okay. So we now replace the text.

Stuart, you're the last person on my list at the top level now for any modifications.

Stuart Lynn: The only thing I have is the geographic question. I don't know where Louis is on that.

Louis Touton: Okay. If the Board could sit silently for about a minute, I think I can....

Stuart Lynn: That would be quite an exercise for us, Louis.

Louis Touton: All right.

Let's start with – what Article is this? Article VI, Section 5 is the first instance I have, Stuart.

Do you agree with that?

Stuart Lynn: Yes.

Yes.

Louis Touton: Okay. And there's two instances in which the word "geographic" was removed. And what's your proposal?

Stuart Lynn: Well, I was hoping you would do searching while we were babbling.

Louis Touton: I have done some searching. And, generally, it says something like "diversity, including geographic" and four terms, "geographic, functional, expertise," and so forth. But it depends a bit on the context. If you're talking about the qualifications of a candidate, for example, for an office, you might have a different consideration than do you in other circumstances.

Vinton Cerf: May I make a suggestion? This is invoking a recommendation of the CEO, namely, that getting this detail done right is not something  –

Stuart Lynn: Let's straighten it out between now and December.

Vinton Cerf: I would suggest that even if we're not entirely satisfied with the use of the term "diversity" and "geographic" with this draft bylaws, that we might leave to the revisiting of this text in December to make it more precise.

In that case, if I see no other hands on comments on the resolution which was introduced by Alejandro about 150 years ago –

Louis Touton: Vint, I do have one matter that's pending that I've recorded, and that was before the break, Lyman raised a topic, and I typed some stuff in and put it in brackets.

Lyman, do you wish to pursue that or not?

Vinton Cerf: Lyman can't even remember what it was that – the answer is no. So if I don't see any further requests to discuss the resolution put on the table by Alejandro, we're ready to vote on the resolution.

I assume that the Board would allow me to waive the reading of the entire text, which was already read.

If you vote in favor of this resolution, you will be voting in favor of the bylaws as modified by this lengthy discussion this morning.

If you vote against it, then you will be essentially voting against the new bylaws and we will be back at square zero.

If you abstain, you will possibly run the risk of not participating in either the positive or negative vote, you could accidentally cause a conclusion you didn't intend.

Stuart.

Stuart Lynn: We've clarified that, that an abstain, for purposes of bylaws, is equivalent to a no vote, because it will take 12 affirmative vote to pass the bylaws.

There are now 18 Directors, not 19, because Phil Davidson's resignation means we have 18 Directors, and two-thirds of that is 12.

I think that's correct, isn't it, Louis?

Louis Touton: Yeah.

Vinton Cerf: So there have to be 12 positive votes.

Nii Quaynor: Vint, some considerations were deferred to December.

I hope some of those too will be dealt with through votes.

Vinton Cerf: Yes.

We still have to revisit the bylaws in December to add the Transition Articles.

So are we ready?

All right.

All those in favor of the resolution to adopt new bylaws, raise your hand.

One, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14 are in favor.

Ivan – I'm sorry, I'm about to ask Ivan, how do you vote?

Ivan Moura Campos: Yes.

Vinton Cerf: All right.

15 in favor.

All those against adopting the new bylaws.

Karl and Rob and Andy.

Were there any who abstain?

No.

Okay.

So 15 to 3, we've adopted the new bylaws.

And I thank you very much for this huge amount of work this morning.

I think we'll now take a break for lunchtime, and then reconvene in an hour Amadeu.

Amadeu Abril i Abril: A short question because I had this problem before.

I would like the scribe noting that I vote in favor by you would make express in the minutes that I don't think this is the reform that ICANN needs and I still have strong rest reservations about the viability of the nominating committee in such a large Board.

And I am saying that once again because sometimes when I try to bring the discussion of these things, it tries to (inaudible) simply because I have apparently been told that everybody would vote in favor before.

Vinton Cerf: Ivan wants to say something before we break.

Ivan.

Ivan Moura Campos: Yes.

It's almost 2:20 a.m. here, so I don't think I will join you after the break.

Vinton Cerf: Thank you, Ivan.

We understand, and we appreciate your stamina.

Have a good sleep.

: You go dancing now?

(Laughter.)

Ivan Moura Campos: Thank you.

Vinton Cerf: We'll reconvene at 2:15.

(Lunch break.)

Afternoon Session

Vinton Cerf: Okay.

It looks like we have a quorum of the Board, so I'm going to reconvene the meeting.

One word of warning.

Our captioning people have to leave at 3:00, and so I didn't realize that the calendar was quite that tight, so we're going to try to blast through the remainder of the agenda items.

You vote yes.

(Laughter.)

Internationalized Domain Names

Vinton Cerf: So I'd like to invite Katoh-san to put on the table the resolution regarding the internationalized domain names committee.

Do you have a copy of the resolution?

Masanobu Katoh: I have it.

Thank you, Mr. Chairman.

Before I'm going to propose the text of the resolution, I'd like to just give you some background, very briefly.

As you remember, and I also reported to the Board yesterday, the original mission of idn committee was expected to terminate by june this year.

Because in Bucharest, Romania, we thought that there are many ongoing issues on IDN, we had an extension of the life of this committee until Shanghai.

As I explained to you very recently, we got a new development, which was the development or approval of the technology protocol for IDN, and because of this development, we see more issues, and some of them are very advantageous.

So although the original mission of the IDN committee would automate, we need some sort of continuity of issues we are working on.

So the resolution I'm going to put on the table is to have – in other words, we are going to tackle the new situation; therefore, we need to again evaluate the missions and the function of the committee and also where possibly we need some restructure of the committee.

But at the same time, we like to keep some function of the committee until the time we can completely restructure as a committee.

And the new committee may be something very similar in terms of the members of the committee, but we probably need some people because of development and the situation.

And with that background, I'd like to propose the actual text of the resolution.

And I hope all Board members have this resolution on your table, too.

Whereas, the Internationalized Domain Name Committee was established by resolution 01.94 to serve as a general coordination body for the work on policy issues related to Internationalized Domain Names (IDNs);

Whereas, the IDN Committee has issued a series of reports and recommendations regarding IDNs and related issues;

Whereas, earlier this month the Internet Engineering Steering Group approved the publication of three Proposed Standards defining an application-level mechanism for IDNs;

Whereas, technical analysis has shown that the IDN standards are not sufficient to limit collisions, confusion, and other potentially damaging side-effects stemming from the unrestrained potential to register IDNs using arbitrary characters available in the UNICODE encoding system;

Whereas, there remains a variety of other unresolved issues and potential problems associated with the use of IDN-based identifiers;

Whereas, deployment of IDNs before these issues are addressed raises serious operational and other concerns;

Whereas, under resolution 02.89, the IDN Committee is currently scheduled to formally terminate at the conclusion of the ICANN meeting;

Resolved that the IDN Committee is continued until the conclusion of the 2002 ICANN annual meeting;

Resolved that the President and the Chair of the IDN Committee are directed to prepare a proposed charter and list of members for a new committee to address IDN implementation issues, for presentation to the Board at the 2002 ICANN annual meeting.

Vinton Cerf: Thank you very much, Katoh-san.

May I call for a second for that resolution?

Stuart Lynn seconds.

Is there – any discussion of this resolution?

Amadeu.

Amadeu Abril i Abril: Okay.

My discussion is not on the resolution but more on the comments that Katoh-san has made.

I agree with the resolution.

The caveats are Katoh-san has said we will come forward with an IDN committee that is very similar in composition.

My advice is we don't do so.

No offense to the current committee, but I think that the whole process with IDN, ICANN has been doing what is called (inaudible).

We are taking the ball, shooting as far as we can to buy time in sending that, sending that, and sending that as far as we can forward with a single kick.

As a Board and as ICANN, if we have nothing clear to say very soon about this, regards – besides the fact that we want a committee to study the problems, we don't know why ICANN is here, we don't know why the Board is here.

I mean, we have the technical specifications on one side.

This is not our business.

We have to say anything about that.

But the implementation of this, you know, raises many more difficulties than the once listed in this resolution and the words of the IDN.

So I think that besides that, and besides instructing the President  – that's my personal position – instructing the President and the chair of the committee that we want a committee with much more nerve on the short term about what are the real problems and what are the recommendations for that, besides that I think the Board should at least tell the community that because of the implementation of these policies are so complex and we know there are so many unresolved, at this time, problems, we advise all the players in this arena not to use commercial experiments, not to use commercial services, not to engage end users in IDN at this stage.

Vinton Cerf: Thank you, Amadeu.

My guess is that such a recommendation would be something that might come out of the committee's work.

Are there any other comments on this?

Masanobu Katoh: May I state a response?

Vinton Cerf: Go ahead.

Masanobu Katoh: Thank you.

First of all, I do appreciate the need for the change of the structure of the IDN committee.

The new issues we are facing need more technical expertise for the detail implementation, and I'm very aware of such kind of need.

But taking this opportunity, I really want to thank all members of IDN committee who have been working very hard during the more than one year.

We created a lot of documents.

We had a lot of outreach.

We had many meetings in the past.

And I think we did a good progress, according to the original mandate from the Board.

So I'm not saying that we are continuing the same members. Because we had such a nice talent in our committee, some or many of them might stay, but of course we are going to add more members.

Also, in the past, the committee expressed the concern and the introduction of many IDN at the same time.

So we recommended in fact that we should take a very conservative approach on IDN.

So we like to explore more on this issue, but, you know, again, Amadeu's point is very well taken.

Amadeu Abril i Abril: And I thank you and all the members for the work on the committee.

I want to stress the differences of the needs, so it's not just an extension of everything.

And the difference of the needs may require also a difference in membership.

Vinton Cerf: I think that Katoh-san is well aware of that now that we're into the implementation phase of IDN.

Stuart.

Stuart Lynn: Yes, thank you, Vint.

I was going to actually want to include a thank you to the committee in this resolution, but since we are extending them to December, we can do it then.

But it's a little point I want to draw the Board's attention to; is there have been some red letters changing the resolution as Katoh-san read it, changing to the words "in Shanghai." That's a clarification.

So as you know, there's been a slight change.

Masanobu Katoh: It's fine for me.

Vinton Cerf: That's a friendly amendment.

Okay.

Bearing in mind that we are on a rush here, if there's no further comment, could I ask for a vote on this resolution?

All those in favor, please raise your hand.

Any who are opposed?

Are there any abstentions?

Thank you.

It's unanimous and we'll go on now to the next topic which is a resolution regarding the Executive Search Committee.

Executive Search Committee

Vinton Cerf: And basically the committee has now convened.

It is now at the point where it's prepared to select a search firm to assist.

The committee also concluded it needed some additional participants on the committee.

So this resolution is intended to authorize the selection of a search committee and also to provide funding for not only the search itself but for potential overlap of the new CEO and the current one.

So very quickly, you have before you and up on the screen the resolution, which I'll read quickly.

Whereas, the ICANN CEO, Stuart Lynn, has advised the Board of his desires to retire from service to ICANN in the first quarter of 2003;

Whereas, at its meeting on 28 June 2002, the Board established an Executive Search Committee composed of Vinton Cerf (chairman), Linda Wilson, Nii Quaynor, Ivan Moura Campos, Masanobu Katoh, and Rob Blokzijl;

Whereas, the Search Committee is reviewing proposals from several firms to support the search;

Whereas, the Search Committee wishes to expand its membership;

Whereas, the Finance Committee has recommended that the Board authorize the expenditure of up to a total of US$ 250,000 for both search and transition costs for the next ICANN CEO with the understanding that the expenditures may occur in both the current and next fiscal years;

It is therefore resolved that Helmut Schink and Michael Roberts are appointed as additional members of the Committee;

Further resolved that expenditures not to exceed US$ 250,000 are authorized for total costs of search and transition costs for the next CEO of ICANN;

Further resolved that the Executive Search Committee is authorized to select a search firm to support the search; and

Further resolved that the Chair of the Executive Search Committee is to negotiate the commitment to the selected search firm under this authorization of resource.

Now, I'd like to put that motion on the table.

I'd also like to recommend a slight change to it.

It suggests that the Chair of the Executive Search Committee should negotiate with the search firm.

I'd like to suggest that that negotiation take place through the CEO of ICANN.

The reason is that it's ICANN that would be making the contract, not the chairman.

The selected search firm, of course, would be a recommendation of the search committee.

So if you – yes, I see that we've modified the text already.

Thank you, Louis.

So that's the proposal.

Is there a second?

Hans seconds.

Are there any discussions of this proposal?

Okay.

All those in favor, raise your hand.

(Many Directors): Aye.

Vinton Cerf: Are there any who oppose?

Are there any abstentions?

Amadeu didn't vote.

Amadeu Abril i Abril: I was late.

Vinton Cerf: You didn't vote.

I'm sorry, you said "i was late.".

Amadeu Abril i Abril: I was late in voting in favor.

Vinton Cerf: Thank you, it's unanimous.

Wait-Listing Service

Vinton Cerf: The next item on the agenda is a resolution relating to a letter received by ICANN from VeriSign.

In this resolution, we talk about the arrival of the letter and issues that the letter raises, and then the question of what to do about it.

And the top-level summary is that the recommendation in this resolution is that this VeriSign matter be referred to the reconsideration committee.

So if you vote yes on this particular resolution, that's what you will cause to happen.

The clauses at the beginning are actually important because they give you a brief sense of how this action even ended up in front of the Board.

So if you will allow me, I'll quickly go through that.

Whereas, in resolution 02.100 the Board authorized the President and General Counsel to conduct negotiations with VeriSign toward appropriate revisions of the .com and .net registry agreements to permit the offering of a Wait-Listing Service under stated conditions;

Whereas, on 16 October 2002 VeriSign's Deputy General Counsel sent ICANN's outside counsel a letter "formally requesting that the Board reconsider three of the conditions at the Shanghai meeting";

You recall that we placed some conditions on the implementation of the wait-listing service consistent with recommendations that were obtained from the Internet community.

Whereas, the Board's reconsideration policy states that "[r]equests for review or reconsideration must be submitted by email to reconsider@icann.org";

Whereas, the Board is of the view that, despite VeriSign's failure to comply with the published procedures for seeking reconsideration, the letter should be treated as if it were submitted to the e-mail address;

Whereas, the Reconsideration Committee currently has pending a request (No. 02-5) also seeking review of the Board's action in resolution 02.100;

Resolved that VeriSign's 16 October 2002 letter is hereby referred to the Reconsideration Committee, with instructions to treat it as if it had been submitted on that date to the e-mail address as required by the Reconsideration Policy.

Is there a second?

Hans seconds.

Is there any discussion of this resolution?

All right.

I'll call the vote.

All those in favor, raise your hand.

Are there any opposed?

By the way, is Ivan with us?

No, he said he would go to sleep.

It was 3:00 in the morning his time.

Okay.

Okay.

Final Approval of LACNIC

Vinton Cerf: The next item on the agenda is a really wonderful one because it is the final approval of the LACNIC, which we celebrated and signed yesterday, but which we now formally have to put on the table.

I'm wondering whether – who the right person is to put this on the table.

I'm tempted – Rob, would you consider –

Stuart Lynn: Alejandro –

Vinton Cerf: Or maybe Alex should do this.

Alex, would you like to put this final approval of LACNIC on the table?

Here.

Do you have it?

You have it.

Okay.

Alejandro Pisanty: Thanks for the honor.

Whereas, the Address Supporting Organization Memorandum of Understanding (ASO MoU) provides that ICANN will develop requirements and policies for the approval of additional Regional Internet Registries (RIRs) and provides general guidance for minimum requirements;

Whereas, after an open and consultative process the ASO recommended the "Criteria for the Establishment of New Regional Internet Registries" as a more elaborate statement of essential requirements, in supplementation to section 9 of the ASO MoU, and as a framework for consideration of applications for recognition of new RIRs;

Whereas, after public posting and comment, the ICANN Board, at its Stockholm meeting on 4 June 2001 in resolution 01.67, accepted the "Criteria", which was later designated ICP-2;

Whereas the President has adopted a set of procedures and standards for the receipt and evaluation of applications for recognition as an RIR;

Whereas, there remains a variety of other unresolved – oh, that's the wrong page.

Whereas an application for recognition, together with a detailed transition plan – including draft bylaws, policies, funding model, and staff resumes – was submitted to ICANN by the Regional Latin-American and Caribbean IP Address Registry (LACNIC);

Whereas APNIC, ARIN, and the RIPE NCC communicated a joint statement praising the excellent work of the LACNIC organization, noting the close cooperation between ARIN and LACNIC, and recommending a favorable response to the application by recognizing LACNIC's accomplishments and according an interim status to LACNIC;

Whereas the Board, on 14 March 2002 at its Accra meeting in resolution 02.28, gave its provisional approval to the LACNIC application for recognition and transition plan, with the expectation that the transition plan would be completed and a final application for recognition submitted;

Whereas the LACNIC organization has reached the conclusion of its transition plan, and submitted a final application for approval and recognition;

Whereas the President of the American Registry for Internet Numbers (ARIN), from whose current service region the LACNIC service region is drawn, has communicated ARIN's favorable assessment and recommendation for final approval and recognition of LACNIC;

Whereas the President has reviewed the LACNIC application and determined that it is in full conformance with the criteria set forth in ICP-2 and the ASO MoU; and

Whereas on 30 October 2002 at the ICANN Shanghai meeting, the President of ICANN and Chair of LACNIC signed the Joinder of Regional Latin-American and Caribbean IP Address Registry (LACNIC) into RIR-ICANN Memorandum of Understanding;

It is:

Resolved the Board gives its enthusiastic endorsement to the President's evaluation of the LACNIC application, and to his conclusion that LACNIC has completed its transition plan and met all of the requirements for final recognition;

Resolved the Board proclaims LACNIC to be a fully approved and recognized Regional Internet Registry, to provide IP address registration and other services for the Latin American and Caribbean service region;

Resolved the Board congratulates and thanks the organizers, Board, President, staff, and members of LACNIC for their tireless efforts, dedication to excellence in services at the executive, registration, and technical levels, and commitment to the values of regional representation, global coordination, openness, and bottom-up self-management, in the best traditions of the Internet;

Resolved the Board gives particular recognition to the Internet Steering Committee of Brazil (Comitê Gestor da Internet no Brasil) for its crucial start-up support for LACNIC; and

Resolved the Board thanks the President, Board, and staff of ARIN for their extraordinary work to support the formation of LACNIC and to ensure a transparent, secure, and successful transition of information and registry responsibilities.

Vinton Cerf: Thank you.

Is there a second?

Rob Blokzijl seconds.

Is there any further discussion of this resolution?

All those in favor, raise your hand.

Unanimous.

I'm sure that, – in fact, I think this is a spectacular step forward and it's an example of what happens when people can cooperate with each other.

(Applause.)

Vinton Cerf: We could use more of that.

(Applause.)

Vinton Cerf: Okay.

Well, that was a blasting through of everything here.

This is finishing faster than I thought.

I have some thank yous to do.

Privacy Working Group

Andy Mueller-Maguhn: We have one more.

Vinton Cerf: Oh, I'm sorry.

I missed one.

Andy Mueller-Maguhn: I'm not sure it's going to be slow, so I had the idea of creating a privacy advisory group because I guess the issue of privacy needs to be taking concern of all structural elements of ICANN watching the new structures worked out.

We have a resolution on the table, but I'm not sure, the legal, maybe Louis can give some advice if that is what we wanted, so we wanted to start as a committee of the Board on the way to create a study committee including outside people coming from privacy organizations like EPIC or Privacy International.

We wanted to start as a committee of the Board and that's somewhere in paragraphs –

Vinton Cerf: I have it here.

At least the text I have.

Do you want me to help you with that?

No, you've got it.

If you read that resolution, that has the right language in it.

Andy Mueller-Maguhn: Okay.

Privacy working group.

Whereas, the ICANN Board wishes to consider whether it should establish an advisory committee addressing issues of privacy;

Resolved that the Chairman of the Board is requested to form a working group of directors to investigate the possible role or roles of an advisory committee on privacy, to propose a possible charter for such a committee, and to develop a proposal for the Board's consideration including a recommendation for the structure and composition of such a committee.

So that might be starting.

Vinton Cerf: That's how you get started.

Is there a second for that?

I see Helmut has seconded.

Is there discussion?

Yes, Jonathan.

Jonathan Cohen: I apologize to the Board, because I would like to have finished quickly, but this – this came up late last night, as we know, and my initial visceral response to it was positive as I think it was for all the Board, because privacy is an issue important to all of us regardless of our stripe or et cetera.

But I had a chance to reflect, and obviously to say one is against privacy is like suggesting one is against motherhood or something, and I'm certainly no such thing.

But I believe that this action proposed at the last minute may be both premature and inappropriate and may actually do some harm to the process and to us.

And my thinking is really simply this, and I'd like the Board to consider my remarks, that privacy is one of those things that is emotionally charged, it is a legal concept, it is a political concept, it is a cultural concept.

And however many people on this Board from the countries that it represents may have reacted to it, it is a far more complex issue. From country to country, people's idea of what privacy is and its importance are very different.

But I have some, in addition to that, concern. I am very – feel very much that the new ICANN is supposed to be being a bottom-up, consensus organization, one that is not top-down.

And the first thing when I really thought it over, I thought there's a classic of top-down mission gallop. This isn't mission creep, this is mission gallop. Because I find it difficult, other than through Whois, perhaps with privacy statements, to see where in ICANN's mission this is appropriate.

There are already two task forces studying the Whois basis.

So I'm not saying that it's not something that needs to be considered. But what I am saying is I think it's premature to establish a Board committee to discuss whether there should be a standing committee on privacy.

I would urge considerable caution on this, but nonetheless, if this Board feels in its wisdom that thought should be given to how and in what manner privacy should be a major consideration as part of its deliberations in relation to its missions, then I would not only recommend slow and cautious approach, but before creating any Board committee to not just to consider it, but to actually committing a standing committee, I would think we need to approach the GAC, which is the final arbiter of public policy and certainly might have a lot to say about privacy.

I think we need to approach the community for an RFC to see whether the community feels this is appropriately within our mission.

I think we ought to ask counsel for review of whether it's within the gray, black, or white area of our concern vis-a-vis our bylaws.

And last but not least, we should be asking the current Whois Task Force whether they're looking at this or whether it's something that would be appropriate for them to do it.

I think if it should be clear that after these inquiries that this is something that we should do, then I also suggest that the proper way to do it is to ask the names council or its successor to establish a working group to consider this and to make recommendations to the Board in order to get on with this.

So, in closing, I think, obviously, privacy is an important issue.

I'm not sure it is our issue or if it is, to what extent. But I think it's totally premature for us to establish this kind of committee.

Vinton Cerf: Just a point of clarification, Jonathan. The text of this resolution says "form a working group to investigate the possible role or roles of an advisory committee."

So the outcome of this examination may be first consulting with all of the people you've just suggested. And secondly, the conclusion that we may or may not want to do it.

Andy Mueller-Maguhn: And it's absolutely consistent with the ICANN bylaws structure. I'm not asking for any top-down approach. I'm asking for checking it out and consulting the people who are in charge to be consulted.

Jonathan Cohen: Yes. What I am saying is that the way that the motion is tabled, it is whether an advisory committee – whether  – whether it should establish an advisory committee addressing issues of privacy.

I think that's one step too far.

If you wanted to establish a Board committee to look at the issues of privacy and how they interact or how they should deal with – you know, how they should impact on the ICANN Board and its mission or its deliberations, I would agree.

When it's directed to creating an advisory committee, that's where I think we're going too far.

Stuart Lynn: I have a friendly amendment to suggest that might cut through this since I think I was on the queue.

Vinton Cerf: I didn't hear you.

Stuart Lynn: I said I have a friendly amendment to propose that I think might cut through this. I think I was on the queue.

Vinton Cerf: You are on the queue. Go ahead.

Stuart Lynn: I, too, have had some of the unease that Jonathan has and see this as very much an issue that's going to run into questions about mission. I won't use the word "mission creep" anymore, because some people who are non-native English speakers have said they don't have a clue what it means. But it may have some issues to do with the mission.

Obviously has public policy issues and so forth.

I was wondering whether, after the words "investigate," to put in commas between there, "including appropriate consultation with the community."

And that community is a code word for GAC and DNSO and so forth.

But I do think this is something that is not usefully done by a set of directors, however well-intentioned, thinking through just on their own and then coming up with a proposal, but is something that needs to be done in close consultation with the community.

Vinton Cerf: Presumably you would have done that in any case.

Andy Mueller-Maguhn: Sure, yeah.

Stuart Lynn: Well, it doesn't say that. And I think it would make some of us feel easier.

Vinton Cerf: I think this is viewed as a presently amendment.

Andy Mueller-Maguhn: And also –

Stuart Lynn: Okay with you, Andy?

Andy Mueller-Maguhn: Yeah, that's all right. And also if it helps you and Jonathan, I can also add to the first paragraph, "issues of privacy on all kinds of ICANN issues" – excuse me. (reading)

Watching issues of privacy on all kinds of ICANN decisions as well as practices in the array of addresses, – where ICANN can create policy and where ICANN can encourage its stakeholders to do so.

And so then you have more explicit than non-mission creep.

So I don't want to create a comment on privacy on the Internet, but on the policy ICANN makes and watching privacy implications there.

Vinton Cerf: I have Amadeu in the queue.

Jonathan Cohen: Friendly amendment, it'll shut me up.

I would like to just have it read:

"whereas the ICANN Board wishes to consider privacy issues, including whether it should establish an advisory committee, together with the consultations," then I'm happy. I just don't want it to be just (inaudible).

Andy Mueller-Maguhn: To be honest, I don't take that as a friendly amendment.

Jonathan Cohen: Then it's an –

Vinton Cerf: You do or you don't?

Jonathan Cohen: Then it's unfriendly.

Andy Mueller-Maguhn: Sure.

Vinton Cerf: Amadeu.

Amadeu Abril i Abril: Okay. My friendly amendment to Andy was, addressing issues of privacy, second line, first paragraph, whereas, issues of privacy within ICANN's mission and competencies.

Vinton Cerf: That's certainly reasonable.

Amadeu Abril i Abril: I don't think it's mission and powers. I don't know which would be more adequate.

Andy Mueller-Maguhn: Normally, I don't think you have to right that, because it's clear. But if you want to have it explicit, okay.

Vinton Cerf: If it makes them more comfortable and it gets passed.

Andy Mueller-Maguhn: If it makes them more comfortable, I will bring them a coffee as well.

Lyman Chapin: I would like to bring a friendly amendment that replaces the word "powers." "Responsibility," perhaps.

Andy Mueller-Maguhn: Right.

Vinton Cerf: Amadeu, an amendment has been proposed to your amendment which changes the word "powers" to "responsibilities." .

Andy Mueller-Maguhn: We are so friendly to each other.

Amadeu Abril i Abril: I'm okay. It's the same idea.

Vinton Cerf: Let's have a love-in.

Okay. Are there any other comments on this.

Karl.

Karl Auerbach: Yeah, I'm sorry for getting back late.

But as – with respect to the notion of mission creep, we've got so many contractual terms and other things where we're mandating the disclosure of information that I hardly find the consideration of privacy to be anything but the flip side, the appropriate flip side, of that mandate, and thus entirely and clearly and absolutely and unquestionably with inside our scope.

Vinton Cerf: I take that as positive statement in support of this proposal.

All right. Are there any other comments?

We have an amended resolution on the table.

It's been moved and seconded.

Can we vote on this now?

All those in favor, raise your hand. Are there any opposed? Robert Blokzijl opposes. Are there any – I'm sorry?

Rob Blokzijl: (Inaudible.)

Vinton Cerf: I can't hear –

Rob Blokzijl: I was a late voter.

Vinton Cerf: And Jonathan abstains.

Re-Thank-You to Paul Twomey

Vinton Cerf: We now get to some thank you resolutions.

This one is – I hope Paul Twomey is in the room. But I don't see him. What a pity.

Well, you'll have to tell him about this.

This resolution recognizes the long service that Paul Twomey has given to the ICANN community and to the GAC.

The Board of the Internet Corporation for Assigned Names and Numbers (ICANN) met on 30 and 31 October 2002, in Shanghai, China. The attending Board Members, which included no representatives from national governments, distinct economies as recognized in international fora, and multinational governmental and treaty organizations, had useful discussions concerning ICANN and related DNS issues.

Noting that Dr. Paul Twomey, the distinguished Chairman of the Governmental Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN), which met on 27, 28, and 29 October 2002, in Shanghai, China, announced at the ICANN meeting on 14 March 2002, in Accra, Ghana, his intention to step down from his GAC position and its chairmanship at the close of the October 2002 meeting in Shanghai, and recalling with measured concern that the ICANN Board has already expressed its deep (though apparently premature) appreciation of Dr. Twomey for his many contributions and extraordinary leadership, the ICANN Board warmly reiterates the sentiments expressed in resolution 02.34.

And there ends the reading of the resolution.

Is there a second?

Alejandro seconds.

Is there any discussion?

Alejandro.

Alejandro Pisanty: You will notice I do not dissociate myself from this statement.

Vinton Cerf: All right. Are there any further notes, comments? I think –

Stuart Lynn: Can we move by acclamation? Approve this motion by acclamation.

Vinton Cerf: Indeed.

(Applause.)

Thanks to Herbert Vitzthum

Vinton Cerf: Okay.

Stuart, I think you had a thank you that you wanted to put on the table.

Stuart Lynn: Thank you, Mr. Chairman. This is a resolution to thank Herbert Vitzthum that I would like to put on the table.

Whereas, Herbert Vitzthum has served as ICANN's ccTLD Liaison since early 2001;

Whereas, Herbert has announced that he will be leaving ICANN in the coming months to pursue the most admirable goals of traveling less, spending more time with his family and friends in Salzburg, and undertaking new challenges;

Whereas, Herbert has compiled a remarkable record of accomplishment, devoting his enormous personal energy to the resolution of difficult delegation and redelegation situations on behalf of the IANA, explaining ICANN and IANA policies to many local Internet communities around the world, and strengthening ICANN's existing ccTLD relationships through improved dialogue and mutual understanding;

Whereas Herbert has combined his hard work with a warm personality, a ready smile, and an unfailingly positive attitude; and

Whereas Herbert will be greatly missed;

It is:

Resolved that the ICANN Board thanks Herbert Vitzthum for his dedicated service to ICANN and the global Internet community, and wishes him the best of luck in his future endeavors.

Vinton Cerf: I would second that.

(Applause.)

Vinton Cerf: And move by acclamation.

Herbert, stand up for a minute.

(Applause.)

Thanks to Meeting Hosts, Sponsors, Etc.

Vinton Cerf: Okay. One more resolution. This one is intended to offer our appreciation to our hosts here in Shanghai, China.

It reads: Whereas, ICANN has successfully completed its Fall 2002 meeting in Shanghai, China;

Whereas the planning and execution of the meeting has been conducted in exemplary fashion;

Whereas the gracious and warm hospitality, splendid facilities, strong support, and close attention to fulfilling the needs of participants, have all been truly magnificent;

Now, therefore, the ICANN Board expresses its deep appreciation and thanks on its own behalf and on behalf of all participants to CNNIC and other local hosts and organizers, in particular, Madame Qiheng Hu, Yang Yi Wu.

The Board would also like to thank all sponsors of the meeting for their generous support. We would also like to acknowledge the unstinting hard work of the staff, of the splendid riverside oriental hotel and conference center, the magnificence of the location and surroundings, the impressive facilities, and the thoughtful service, all contributed to the success of the meeting.

The Board also expresses its great appreciation to John Crain, Diane Schroeder, Theresa Swinehart, Mary Hewitt, Dan Halloran, Herbert Vitzthum, Steve Conte, Laura Brewer, Teri Darrenougue, and the rest of the ICANN staff for their dedicated efforts in ensuring the smooth operation of the meeting.

Is there a –

Stuart Lynn: Mr. Chairman, your – you have an obsolete version of the motion. The correct version was up there. You don't have to read it again, but it will – also includes all the various sponsors and the city of Shanghai, the Government of Shanghai.

Vinton Cerf: Oh, thank you. I'm sorry. I was reading from a text that was handed to me earlier today.

So what did I leave out?

If we scroll down. There we are. I left out – keep going – oh, I left out Wei Mao and Chengqing Huang.

Stuart Lynn: The City of Shanghai.

Vinton Cerf: And the City of Shanghai for all of their support to make the ICANN meeting possible.

With that amendment, is there a second?

(Unknown): Second.

Vinton Cerf: I just read them.

Oh, my goodness. I see.

The Board would also like to thank all sponsors of the meeting, includes CNC, China Mobile, Great Wall Broadband Network, Asian Domain Name Dispute Resolution Center, Hewlett-Packard, Neustar, and VeriSign for their generous support.

Thank you.

And I think by acclamation, we can accept this resolution as well.

(Applause.)

Yes.

Alejandro Pisanty: On this point, was there support, again, from the University of Oregon for the web cast?

John Crain: Yes.

Stuart Lynn: Then we should add that in.

Alejandro Pisanty: A motion to add that in to the thank you motions.

Stuart Lynn: We'll make the appropriate adjustment.

Board Assessment

Vinton Cerf: We now come to a new item on the agenda, namely, new business.

And I have several items that we need to cover.

Let me start with Linda, who has some issues to raise on Board governance.

Linda, let me give the floor to you.

Linda Wilson: Thank you, Vint.

Given the state of growing maturity of ICANN, now that we are about four years old, and consistent with our efforts through the Evolution and Reform Committee to improve the structure of the organization, I thought it would be helpful for us to look internally and think about how to ensure the fine performance of the Board itself.

And looking at the organization, I notice that we have a number of standing internal Board Committees, the Executive, the Audit, Finance, Reconsideration, Conflict of Interest.

But what we don't have in any formal way is a look at our own internal operations. So I'd like to suggest to the Board that we consider establishing a governance committee which might have a more felicitous name, and that that committee assess and encourage the excellent performance of the Board and the Board's relationship with its CEO. There are a number of functions that such a committee might undertake. It need not take them all on at once. But I will mention them briefly because I would like to encourage the Board to think of inviting the chairman to appoint a working group to plot this out and bring it back to the Board as a formal recommendation.

The kinds of functions that it might undertake range from developing and recommending to the Board a slate for the election of chair, vice chair, for the population of the executive committee, and the other Board committees, so that those are thought about as a whole, and the ways in which they interact and relate to one another. That it might undertake, on a periodic basis, the review of the charters of those committees to see whether they need adjustment and to work with the committee members of the relevant committees for such adjustments.

It might undertake careful planning of and perhaps even carrying out of the orientation of new Board members as the Board evolves year after year, bringing on new members.

It might serve as a resource in an ongoing way for members, not just new members, to make sure that we all keep our minds focused on what our roles and responsibilities are so that we all work with a common understanding of that.

It might undertake periodic evaluation of the Board's own performance and the relationship between the Board and its CEO.

It might undertake from time to time consultation with the CEO about internal problems that are under the management of the CEO as a way of getting before the Board facts and analysis to be balancing some of the anecdotal information that we do receive and the pressures individual Board members have as they are importuned by members of the community, especially to be able to distinguish between systemic problems, chronic problems, isolated problems, and myths.

The committee might also undertake periodic evaluation of the CEO, although that function could be assigned in other places. But it is one of those things that should happen in any well-functioning organization. It might serve as a locus for consultation and development of proposals for new task forces or committees initiated by Board members, not as a source of control, but as a source – as a resource for consultation.

It might also take on the oversight of conflict of interest, integrity, and adherence to bylaws matters as a way of ensuring the Board's own education about its responsibilities and as prevention and avoidance of problems that might otherwise have to come to the reconsideration committee or the independent review process.

If we were to have such a committee, there would be ways in which it relates to the Ombudsperson, to the Public Participation Manager, and, of course, very distinctly with the CEO or with the Chairman of the Board.

And I don't suggest this as a way of detracting in any way from the leadership we expect from both those officers. But I think that it might support the organization – the functioning of the Board and the moving of us into our next stage of maturity. And I would like to encourage us to take this matter under discussion.

Vinton Cerf: Thank you very much, Linda.

I think those are well-considered recommendations.

I want to interrupt for just one second, because I have a priority problem.

Diane, Antonio Tavares was expecting to come back here much later. And we're finishing much sooner. Do you know where he is?

Diane Schroeder: No, I don't.

Vinton Cerf: Rats. He was going to give us a pep talk on the  – on the upcoming meetings in rio. And he is going to be very disappointed if we don't track him down.

Thank you. I apologize for the interruption.

Are there – is there a specific proposal that you're making with regard – no action for the Board now, as much as it is to contemplate this? Or do you have a specific idea in mind?

Linda Wilson: We could adopt the language patterned on that that is in the privacy working group resolution, namely, if the Board agrees, whereas the Board wishes to consider whether to establish such a committee, we could then invite the Chairman of the Board to appoint a working group to further develop the idea and bring it to us, preferably at the December meeting.

Vinton Cerf: I'll take that as a proposed resolution.

Is there a second? Jonathan Cohen seconds.

We can have some discussion now of this proposal.

I can't imagine anybody speaking against it, although I will say that the menu you offered is probably larger than one would saddle any committee with.

But self-analysis and evaluation of our own operation, I think, is very healthy.

So it would a very useful committee to have. Moreover, we don't have well-defined procedures of our constitution of our officers and all that. And that would be a useful mechanism to have in place. Amadeu.

Amadeu Abril i Abril: Thanks. You know this is one of my beloved topics. I have repeatedly said that there is one part of ICANN that's underperforming. It's the Board. And you know that I am not making friends saying that.

Not a problem of the individuals here. There are structural constraints. Too many people are trying to do too many things on teleconferences on the other side of the moon. This is impossible. To the list that Linda has provided, we need other things, not only how we hope – we populate committees, which is one of the strangest things I have ever seen here in ICANN, but also the type of committees we have. Normally, the Board has internal, functional committees. But we are completely removed from the material activities, the issues that ICANN is dealing with.

Here we only deal as a Board, normally.

And things like that.

The question of the tools we use to work, or I would say lack thereof, that nonuse of the mailing list as a working tool, that the use of (inaudible) instead of divided sessions to deal with issues and even bylaw changes, whatever.

The style of discussions we have that favor more statements than dialogue, and all these things that I think is really urgent.

Now that you are giving us what we want, a more efficient ICANN.

We have a problem. We have stated that we saw the problems in the councils, and one of these was the composition, the way they were elected, and the size. And we are not taking that seriously for our self. So we need to work much harder in having this Board do something more productive, really.

Vinton Cerf: I with observe that Amadeu may be a candidate to serve on this governance committee.

Amadeu Abril i Abril: You would put all the people that raise complaints here; right?

Vinton Cerf: Well, I think the critical analysis is very appropriate.

Alex.

Alejandro Pisanty: From the ERC's point of view – I will speak for myself, but coming from the ERC side, we received many comments and read many comments during the period leading up to now in the reform process, demanding different – a number of different changes in the corporate governance and in the actual operations areas.

They were not within the scope of the ERC, but I think this is a felicitous way, it puts the decisions in the hands of a group that can actual produce some action.

And it will also be necessary, of course, not to overreact to the demands of improvements in corporate governance, et cetera.

But really, this is the kind of group that with Linda's wisdom can do very well in tracking a way to operate.

And I don't think that all the issues that Linda has raised for the committee's subject matter have to be looked at at once, so we can see that this group could have a program of work and (inaudible), it could take years to fulfill that program.

But first steps first.

Vinton Cerf: Okay.

Vinton Cerf: Andy, you're next but let me just warn everybody, I have two minutes and then we have to shut down so our captioning folks can leave.

So Andy.

Andy Mueller-Maguhn: Just very short.

Amadeu gave a good description of the tasks that that committee should have a look at, and I'd also just like to mention that for me that sounds like a very good idea because it might be exactly that part the ERC missed to address in its looking – reviewing of the structure.

Vinton Cerf: Okay.

So I think we'll close comments on this proposal.

We have a resolution on the table to explore the creation of a governance committee.

Are we ready to vote?

All those in favor, raise your hand.

Are there any who object?

Are there any who abstain?

It's unanimous.

I will work with you, Linda, on populating that group.

Other Discussion

Vinton Cerf: And with that, I do not believe I have anything else on the agenda.

Amadeu.

Amadeu Abril i Abril: Yes.

Yesterday I gave you also a topic for (inaudible) relating to the questions of the ccTLD name server updates, how it relayed to issues of zone file publishing, the recent discussion we had of that, and eventually any discussion for the Board of any action we should take here.

I come to the conclusion directly.

I don't know exactly what happened at the end of all this.

What I have in my mind is I would like, no matter what other discussions, I know that name server change implies a lot of thing.

It may be a redelegation or whatever.

But my feeling under, you know, the last month was that when this comes from an absolutely exogenious and absolutely reliable external reason like a company disappearing or to provide these services, the goal of stability should be absolute the first and only consideration in doing the iana functions.

And any other considerations that might be legitimate, I would agree here more with what the staff is doing, that some of the claims of the ccTLDs come in another place, probably, come in another moment.

But we should not change the priorities of our task in that direction.

And I don't know whether we'll have the time, probably not, but these are the kinds of things the Board should be discussing as well.

Vinton Cerf: I absolutely agree with you, Amadeu.

Our time constraint is the function of my not realizing that our captioning folks had been told that the meeting would be over by now.

I'd like to continue that subject to the next Board meeting, and we'll take it up at that time.

So with that, I'll adjourn this Board meeting and thank everyone here in Shanghai for joining us.

See you all at the next one, and before that, on the 'net.

(Applause.)

(Proceedings conclude at 15:15 local time.)

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