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ICANN Meetings in Wellington, New Zealand

GNSO Council Meeting

Wednesday, 29 March 2006

Note: The following is the output of the real-time captioning taken during the GNSO Council Meeting held on 29 March 2006 in Wellington, New Zealand. Although the captioning output is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.

>>BRUCE TONKIN: Okay.
Welcome, everybody.
This is the GNSO Council meeting.
The agenda for the council meeting is up on the screen there.
We'll be approving the minutes of our meeting that was held on the 2nd of March.
Council members have the opportunity to update any statements of interest that they may wish to update.
Then we'll be talking further about the WHOIS statement of purpose that we received from the WHOIS task force.
There's a discussion on some possible next steps with respect to international intergovernmental organization domain names, a discussion about redemption grace period, whether that's effective, and then any issues arising from the GNSO public forum.
Are there any changes anyone wants to make to that agenda?
Okay.
I think we should first just briefly introduce ourselves, then.
And I'm not sure, do we have anyone on the phone at all?
No?
Okay.
You want to just start?
My name -- well, my name's Bruce Tonkin.
I'm the chair of the GNSO Council, representing registrars.
And perhaps we can start with Kiyoshi, just announce your name and where you're -- your constituency.
>>KIYOSHI TSURU: Thank you, Bruce.
Kiyoshi Tsuru with the intellectual property constituency.
>>KEN STUBBS: Ken Stubbs -- I'm sorry.
Excuse me.
>>JUNE SEO: June Seo, registry constituency.
>>KEN STUBBS: Excuse me, June.
Ken Stubbs, registry constituency.
>>BRET FAUSETT: Bret Fausett, at-large liaison to the council.
>>SOPHIA BEKELE: Sophia Bekele, Nominating Committee appointee, GNSO Council.
>>AVRI DORIA: Avri Doria, NomCom appointee.
>>MAUREEN CUBBERLEY: Maureen Cubberley, also Nominations Committee appointee.
>>ROSS RADER: I'm Ross Rader.
I'm the North American representative of the registrar constituency to the council.
>>NORBERT KLEIN: Norbert Klein, I'm representing the noncommercial users constituency.
>>ROBIN GROSS: I'm Robin Gross.
I also represent the noncommercial users constituency.
>>PHILIP SHEPPARD: Philip Sheppard with the business constituency.
>>GRANT FORSYTH: Grant Forsyth from the business constituency.
>>MARILYN CADE: Marilyn Cade, business constituency.
>>TONY HARRIS: I'm Tony Harris, ISP constituency.
>>GREG RUTH: Greg Ruth, ISP constituency.
>>BRUCE TONKIN: Okay.
And --
>>KEN STUBBS: Bruce, I'm sorry.
Point of order.
I've got somebody on IM telling me that the conference bridge isn't open.
>>KIYOSHI TSURU: Same thing here.
No audio available.
>>BRUCE TONKIN: I think Glen's working on establishing that.
Do we know who's trying to call in?
Cary.
Thank you.
>>KIYOSHI TSURU: And Steve, Steve is trying to watch through the --
>>BRUCE TONKIN: Well, let me say that I can virtually see nothing beyond the end of this, because they've got the lights right in my eyes.
So I think we'll get started.
And when we get the other members on the phone, we'll acknowledge them when they join.
So with respect to the minutes of the 2nd of March, Glen, can you confirm they have been posted?
>>GLEN DE SAINT GERY: They have been posted.
They've been posted to the list, Bruce.
>>BRUCE TONKIN: Okay.
>>KEN STUBBS: Mr. Chairman, I'd like to move the minutes be accepted as presented.
>>BRUCE TONKIN: Okay.
Thank you, Ken.
All those in favor of approving the minutes, please say "aye."
>> Aye.
>>BRUCE TONKIN: Are there any against?
Are there any abstentions?
Okay.
We'll note those minutes as passed.
Now for an interesting discussion on WHOIS.
Sorry, you're quite right.
Thank you, Ross.
Are there any updates on the statements of interest that anyone wishes -- any council member wishes to make?
>>MARILYN CADE: Can I -- Bruce -- it's Marilyn Cade.
I need to ask a clarifying question.
I have updated my statement of interest.
And while it's been posted to the task force, that I'm not sure it has yet been posted to the council.
So I would just ask -- just make a note to ask Glen if she might, as our Secretariat, to make sure that the updated version -- I'm sure she's already done that.
But just calling attention to other councillors that I have updated my statement of interest.
>>BRUCE TONKIN: Thank you, Marilyn.
>> Bruce, I also sent an updated statement of interest to the task force yesterday.
I realize it wasn't sent to the council.
I'll work with Glen to get that done.
>>BRUCE TONKIN: Ross.
>>ROSS RADER: Just quickly, because it sounds like we have more than one that's been updated.
Perhaps we can share what the substantive points of those updates were with council for the record.
>>BRUCE TONKIN: You want them to verbally state those?
>>ROSS RADER: Just what the material points of the update would be, yes.
We don't need to, I think, read the entire statement into the record.
>>BRUCE TONKIN: Okay.
Do you want to just advise the council on the material changes?
>>MARILYN CADE: I'm happy to.
But I prefer to read it word by word.
I'm joking.
What I did, I both reorganized it.
So that's not a substantive change.
I also described in more detail some of the specific work that I do for clients.
I described in more detail some of the nonremunerated work which is attending conferences, et cetera, that are not related to ICANN.
And I noted again in the statement of interest the potential conflict that I have in relation to representing and advising a client who is interested in a policy issue that will be before the council in the future.
And that is on the issue of unreserving and allocating second-level single-letter domain names.
>>BRUCE TONKIN: Bret?
>>BRET FAUSETT: Yeah.
The updated statement of interest that I sent to the task force, I wasn't sure whether they were interests or not, but I just thought, on -- you know, just go ahead and disclose it.
Once upon a time, I worked with the Dot Triple I team who proposed a new gTLD, dot Triple I, back in 2000.
They asked me, when they were not selected for the test bed, to keep them posted on what ICANN was doing, which, for six years now, I have done, without compensation.
And I haven't been paid by them since 2000.
I have no promise of future compensation from them if they do decide to resubmit.
But they may decide to come back at some point, and if they do, I expect that I'll be part of the team, but have no promises or contracts in that area at all.
>>BRUCE TONKIN: Thank you, Bret.
Okay.
The other thing -- I think there has been a bit of discussion --
>>MARILYN CADE: Bruce, I have a question for you and for maybe the council -- the councillor.
Sorry, the general counsel or assistant general counsel.
I saw in your guidance to us that we should, of course, discuss any work we've done officially for ICANN, paid or unpaid.
So that I would assume would include any work that has been done -- and I think you said up to a year ago?
>>BRUCE TONKIN: I -- a bit like some of the others here, I'm not sure which groups I've posted some suggestions to.
But in the setting up of the task force on the policy development process around contractual conditions, there was a bit of debate on that list.
And I posted some points to help guide people.
I think at this stage it just guides, because they're not formal council procedures.
But one of the -- I based my guidelines on the board's conflict of interest policy, and on, I guess, just some general best practice.
But when you're disclosing an interest, when you're joining a council committee or task force, I think it's important to disclose not just who you're being paid by now for a particular piece of work, but who you have been paid in the last 12 months, because that can have a bearing on what you're working on.
And also if there's any future consideration.
So, in some fields, some consultants might say, "I'll do some work at no charge, but if I achieve this outcome, then I get some sort of success fee."
Just want to distinguish where you've been paid within the last 12 months, where you're being paid now, who's your employer or your clients, and is there some sort of success fee in the offering for some work that you're doing.
The other thing I had suggested is, I think -- where possible, I think it's important for members of council or committee to have a clear public statement that's just on the permanent record.
So, for example, I work for Melbourne I.T.
But some members of council are consultants that have many clients, so typically they might form a company for that consultancy.
But it may not be appropriate to just have a list of the 20 whatever clients they may have when those clients may not have any direct bearing on an issue at the time.
And I suggested as an option for those council members that would need to get special permission to be publishing the names of their clients just as a general list that we use a closed list similar to what we have done in the past for providing telephone numbers and mobile numbers of members of council where we have shared that information at the council level.
And I would suggest the task force can do something similar.
But if you are about to talk about or vote on a particular issue that directly relates to a client, that client should be publicly disclosed at that point.
And, furthermore, if -- I think the other area that can cause -- which I think should be on the public record is, if you're representing a constituency, let's say I'm a member of the registrars constituency, if I am specifically doing some paid work for a registry, I think that should be disclosed, because I'm actually going across into other constituencies there.
Or if you're a member of the business constituency and you're consulting for a registry or registrar or -- and then, I think, also for the nominating committee members, if they are doing any work for any directly related constituency member, I think that should be disclosed on the public record.
Those are just some guidelines that I have suggested just based on reading the board's conflict-of-interest policy.
I want to make clear, though, in no way am I suggesting someone not engage on an issue simply because they have an interest.
I think it's just important that the council and the community know what those interests are and that at some future point we will develop a policy that's appropriate for a supporting organization and seek the board's approval of that.
So at this stage, we're more or less acting on the basis of some guidelines and what we all agree is reasonable.
>>MARILYN CADE: Can we, though, please, make it a priority to talk to the staff and devise procedures and processes which are reviewed by the counsel and which are consistent with what is required of the board?
Because I am very interested in appropriate transparency, et cetera.
But I also think that we should be having a relatively consistent policy across the board for the supporting organizations and for the board, and perhaps a dialogue -- I don't mean here -- but a dialogue later might illuminate us on the timeliness with which we could move forward.
>>BRUCE TONKIN: Ken.
>>KEN STUBBS: Yeah, Bruce.
I have two comments.
First of all, with response to Marilyn's suggestion, I think it's a very good idea, and I would strongly suggest that if at all possible, as soon as it's practical, that we ask the ICANN people to provide us with some sort of -- I will call it at this point in time a white paper.
Let me explain what I'm talking about.
At what point in time is it incumbent on someone to disclose conflicts of interest?
You know, I don't care if you're promoting hamburgers for McDonald's in Toronto, Canada.
If it has absolutely no relevance to the ICANN process, it, frankly, is nobody's business.
At the same point in time, if at any point in time you either advocate or you get to a point where you are working towards influencing a decision in any of the policy development processes, I think that's where we start to cross the line immediately.
The other thing is this: With respect to the constituencies, the presumption is that every member of the names council and every member who's assigned to a task force, quote, representing a constituency, is advocating from that constituency's perspective.
And I think the point that you made there is very important for us to remember and ingrain in the future. 'Cause if not, we're the ones that are going to bear the brunt for the criticism somewhere down the road.
And I do not want to create a situation where we all look like fools because somebody said, "Well, I didn't understand, I thought all I had to do was to declare before -- when we voted on it."
Well, that's not the case at all.
I want to know up-front if anyone who is hypothetically a member of the I.P. constituency is working for a registry, you know, or who could have -- or vice versa.
That's all I'm asking.
And I think that's fair for the public as well.
>> Bruce.
>>BRUCE TONKIN: Yes, grant.
>>GRANT FORSYTH: I'm going to agree entirely with Ken and just suggest that we very quickly task the staff to come back with a draft set of procedures with an explanation, and I don't have anything more to say at this time.
>>BRUCE TONKIN: Okay.
Thanks, grant.
I can't resist, since Ken's raised analogy, I love analogy.
You're talking about I don't mind if you're working for a hamburger company.
But the instant you try to get dot hamburger for that company, you need to disclose.
And I think certainly in the policy work that we're doing in the next six months or so, there are some pretty big commercial implications on the decisions we make, and I think it's very important that we disclose appropriately as we do that work.
Okay.
Any more on that topic?
Okay.
So the next topic is WHOIS.
We've had two formulations coming from the task force.
Both of those formulations share the first set of words.
And the first set of words in those formulations says, "The purpose of the gTLD WHOIS service" --
Actually, I'm just -- want to do a sound check just before I start on this topic.
I believe we now have people on the phone.
Cary Karp, are you able to hear me?
It's Bruce Tonkin speaking.
>>CARY KARP: Yes, I am, Bruce.
>>BRUCE TONKIN: Thank you, Cary.
So on the topic of WHOIS, the purpose of the gTLD WHOIS is to provide information sufficient to contact a responsible party for a particular name who can resolve or reliably pass on data to a party who can resolve.
And then we have, I guess, two variations of the following words.
The first variation is -- more than I intended -- to resolve either issues related to the configuration of the records associated with the domain name within a DNS name server is one formulation.
And the second one is, to resolve technical, legal, or other issues related to both the registration and use of a domain name.
I think, looking at those formulations, if we look at the first part of it, where we're talking about the information sufficient to contact a responsible party, I will just briefly sort of show you the -- I guess the current information that's displayed that relates to people.
The first bit is that today, the WHOIS service provides the name and postal address of the registered name holder.
So that's, essentially, identity information.
It's the identity of the registered name holder who has signed the agreement with the registrar for that domain name.
And the second part of that is the name, postal address, E-mail address, telephone number, and fax number of the technical contact and administrative contact.
Neither of those two terms are defined.
But if we look at this first part of the definition that has come back from the task force, I just want the council to be very clear that what that means is the removal of this first bit.
That would go.
And you just would be left with the contact number.
So you lose the name and postal address of the registered name holder.
So that's the first implication that council needs to be aware of.
The second part of this discussion, then, is between these two points.
And I think -- I'd just like to give a very quick overview of the difference between what the domain name records are, so people understand what that means, and what the use of a domain or some example uses of a domain name, so the council is aware of what the implications of those words are.
So firstly, if we just work out, it's worth very fast tutorial here, and one of the things -- and I have some -- had some discussions with some of the registries.
But we're probably getting to the point where we need to run tutorials on how domain names work for council and task force members and other members of the ICANN community that are joining.
Because I think there is a lot of misunderstanding on what they are.
But let me just try and do this very quickly.
And I'm not a particularly polished trainer in the terms of DNS.
But, basically, a domain name is an identifier that (inaudible) the ICANN mission.
And the typical way an identifier works is you use that identifier to find something else out, to find some more information.
And ultimately, what you're doing is you're translating a domain name, which is a name, into a number, which is called the I.P. address.
And that number is similar to a telephone number.
It basically allows your computer to then find the destination that you're seeking.
So all a domain name is is a name that you then go and ask a computer out in the Internet for the number that corresponds with that name.
It's like a telephone directory.
Start with a name, look up the name.
Tells me the number.
Once I have the number, I can dial that number and get to my destination.
That's all a domain name is.
So just -- But the process is a little more complicated in how that works.
Typically, you start with a domain name.
We'll call it example.com.
We then go to the dot com computer that tells me some information about that name.
And all that dot com computer does is tell me the name of a computer to find more information.
So just the dot com computer itself doesn't really tell you very much.
It just says, oh, okay, you're after some information about example.com.
You need to go and ask this other computer for information about that.
So in this case, it responds with the name of a name server, which is just the name of a computer called NS.example.com.
And then I have to go to this next computer to get some more information.
And the more information that might come back with -- and these are some common-used records in the DNS.
One is "A" records.
They're very commonly used when you're trying to find a Web site.
So, basically, when I want to find a Web site, I type the name in the -- my computer here, when I type that name, goes and asks the VeriSign computer, tell me the number, the Internet number or the Internet telephone number I need to use to find that Web site.
It goes through a series of computers and eventually comes back with the "A" record, which tells me the I.P. address of the destination.
So that's a domain name; right?
So, basically, the -- this definition up here -- definition 1 refers to that process.
It basically says, the domain name is the only thing that ICANN has any responsibility for and the only thing the GNSO has any responsibility for.
And the domain name is just simply a record held in the registry that tells you enough information about how to find the physical location in the Internet.
What's at that physical location is not the responsibility of ICANN in any way. It's certainly the responsibility of that record. So you could -- and we can just talk about what you could do with a record in a second.
So then the second definition uses the term "use of a domain name." I just want to be clear on what the "use of a domain name" means.
Any particular domain name, billions of people may use that domain name.
So if you want to get to the use of a domain name, you're talking about now a much bigger set of people, because in the first definition you are talking about the responsible party who is responsible for that domain name record.
The second definition, you are talking about trying to resolve issues in the use of a domain name. But a domain name is a public resource. Anyone can look up a domain name and use it.
And so examples of how people may use a domain name are in a web browser. And a web browser uses the domain name to find the location of the Web site typically. So the web browser goes and looks up the DNS, it goes out and asks the VeriSign computer and the various other computers in the network to help find the IP address, which is just a number, of the computer hosting the Web site.
The Web site operator may or may not have any association with the domain name holder. It's a completely separate resource on the Internet. It may or may not have some connection with the holder of the domain name.
Because I can point a domain name anywhere. I can point my domain name at ICANN.org, if I want to, but I have nothing to do with ICANN.org's Web site.
Another use of a domain name is within a Web site. A Web site may use a domain name to hyperlink to another Web site. The web browser looks up the DNS to find the IP address of the other computer that's hosting the Web site. So that's another common use of a domain name.
And then an e-mail client, like I have a computer here that's got Microsoft Outlook on it. My e-mail client may use a domain name to find the destination for an e-mail, or actually to indicate the destination of an e-mail.
The e-mail software uses the DNS to find the IP address of the computer that is the destination of the e-mail.
That computer, in turn, puts the e-mail in the mailbox of the intended recipient of the e-mail.
So I have just given three uses of a domain name. It's used by people typing the name of the domain name on their browser, it's used within Web sites to link to other Web sites, and it's used by e-mail clients to find where I should send the e-mail. What's the destination of the e-mail.
So the WHOIS service today, and one of the things we're looking at, is this the right service. But the WHOIS service today only tells you who is responsible for the domain name record, and the domain name record is only the first link in the chain.
Often, the registered name holder has little or no control over the DNS records in the name server that is at the end of the first link in the chain.
So quite often, the name server that holds the detailed records is operated by a Yahoo! or an AT&T or an MCI or some large company. So typically, the responsible name holder is usually only able to control -- they can choose what the name is, and they can choose what the name server is. And that's it. That is all the registrar -- or the registry have any direct involvement in.
And then under that, you have another computer called a name server, which may or may not be operated by the operator of the domain name, that then points to another location in the Internet that may or may not have anything to do with the domain name holder.
So the possible things you can do as a registrant are the following. You can register a domain name, you can delete it from the registry, you can delete the name from the registry DNS. That's a little bit different because the name may be in the registry so no one else can register, but it may not be in the DNS. Or you can change the name of the name server. So those are four possible things you can do as a name holder.
Now, most intellectual property and law enforcement efforts usually require the identification of the destination where that domain name points to. And this is usually worked out in reverse from the IP address that is returned when you look up the DNS.
So when I type in the domain name, it comes back with an IP address. That is the location where the computer is, whether it's the computer that's holding the e-mail or whether it's the computer that's running the Web site.
The only way I can find out information about that computer is I have to find out who is responsible for the IP address, which is actually into the realm of the ASO, which is the WHOIS related to IP addresses.
So that's a very quick tutorial. And now I just want to go around the table now. And we're not trying to make a decision at this meeting, but I'm interested now what people's views are at the council level on, firstly, is the first part of this what you want, which is now -- no longer has the connotation that you are identifying the identity of the registered name holder. That's dropped out.
And secondly, with respect to these two things, do you want it to refer to just the domain name record or we're now somehow talking about the use of a domain name. And I'm not sure how the registered name holder would necessarily have much control over that. But -- and I'll just go around the table. So starting with Greg. What are your thoughts on this definition?
>>MARILYN CADE: Bruce, if you would go back, I actually have a question for you, and perhaps it will clarify something for me.
You said that the registered name holder could choose the name and could choose the name server.
>>BRUCE TONKIN: Yes.
>>MARILYN CADE: In my experience as a registered name holder and in my experience in advising AT&T, I found that actually the user can also very often determine the uses of the name. I can determine, for instance, whether I'm going to put a Web site up behind the name, or only use the name as an e-mail address.
I can also determine, through contracting with someone, other uses of the --
>>BRUCE TONKIN: How that's determined is in two ways. The first thing that you put in the domain name record is pretty much the provider, and you can be your own provider. So AT&T, for example, runs its own name server and has complete control over those things.
The other thing that you -- that the typical end user doesn't normally control the name server. They buy services from the service provider. And so they may choose to buy an e-mail service which is basically the destination or they may choose to buy a web hosting service which is at the destination. So they buy a service. And the service provider configures those records, which is why, in the WHOIS today, it's common to include information about the technical contact.
While that's not defined, a common use of that is to give you the name of the service provider.
So, for example, Melbourne I.T. registers domain names that have Yahoo! as the technical contact because the customer has gone to Yahoo! and bought an e-mail or web service from Yahoo!. And it's Yahoo!'s name that's in the technical contact field.
But that's -- choice of buying an e-mail service or web service is not the domain name. That is a separate service.
So you can buy the domain name and have nothing to do with the domain name. You can buy a web service or an e-mail service and then you can ask your service provider to configure the domain name record for you to do that.
So I just want to separate those decisions.
>>MARILYN CADE: Or if you are technically competent, you can do that yourself.
>>BRUCE TONKIN: Yes, you can operate a name server yourself.
Does that answer the question?
>>MARILYN CADE: And as a domain name holder, I am making those decisions, so I do have the ability to determine the use.
>>BRUCE TONKIN: You are talking about you are making a decision about the configuration of the record there, Marilyn, as opposed to the use.
What I am trying to clarify is use. People use domain names. You configure the domain name record, and you say I want an e-mail which is just code for set up the domain name record to have MX records associated with the domain. But you are talking about the destination.
Whereas use in the terminology that is used in this definition doesn't say -- see, what I think you are saying there, and this is where I am trying to clarify whether these definitions are really different, everything you have described there fits into definition 1, which is issues relating to the configuration of the records associated with the domain name. E-mail, and web service that you have selected as the services that you want to have referenced by that domain name fit into category one.
Category 2, use of a domain name, is a more general term, because it's not use of the domain name by the registrant.
Maybe if you put that in there, that would clarify that potentially. You could say "or use of the domain name by the registrar."
But I just want to be clear, use of, anyone can use a domain name.
>>MARILYN CADE: And listening to the discussion yesterday, which, you know, being a member of the WHOIS task force, for the audience and for those listening, I should be declaring my interest. I am a member of the WHOIS task force.
There is a lot of discussion and dialogue behind that. Listening to the conversation yesterday clarified for me that, in fact, that is -- that was the intent when I drafted that. I was referring to the uses of the domain name by the registrant.
>>BRUCE TONKIN: By the registrant.
>>MARILYN CADE: Exactly.
So I -- I'm not proposing an edit on the fly. I am merely saying to the council --
>>BRUCE TONKIN: And that's the point.
So what I suggest we do is start back with Greg, unless you want to ask a question on the technical side, but I'm interested in whether people feel either one of these definitions is right or whether they should be improved.
And the outcome of this meeting would be some proposed improvements to consider, basically.
But I'm just telling you what those words mean to me as an engineer, and then if you want to clarify those, then obviously you can put forward changes.
So starting with Greg.
>>GREG RUTH: First of all, I have to agree with Marilyn. That's how I took the sense of the phrase "use of a domain name." Use by the registrant.
Secondly, you made the point that the domain name holder is not necessarily responsible for the content or the operation of the site to which the domain name points.
>>BRUCE TONKIN: That's correct, yes.
>>GREG RUTH: But they often are.
>>BRUCE TONKIN: That's also correct.
>>GREG RUTH: And when you are trying to solve technical, legal, or other kinds of issues of that kind, you need a lead. You need to have some information to go on to help you resolve those issues.
And so I think this is -- I have to agree that the way these things have been used historically and should be used in the future is consistent with Formulation 2.
>>BRUCE TONKIN: Thank you.
Tony Holmes.
Hang on.
If I -- just so I clarify that. So would you be in favor of adjusting Formulation 2 to be use of the domain by the registry?
>>GREG RUTH: Sure.
>>BRUCE TONKIN: So formulation -- "support Formulation 2 with clarifying words that it is use by the registrant."
Okay. Tony Holmes.
>>TONY HOLMES: The short answer, Bruce, to both the questions you raised a while ago I think is yes.
The registration issue --
>>BRUCE TONKIN: So you are okay with the first wording, because it's not just the formulation --
>>TONY HOLMES: No, that's not what I am saying. What I am saying is the intent of this is absolutely critical.
>>BRUCE TONKIN: Yes, it is.
>>TONY HOLMES: And that seems to be where we are floundering.
>>BRUCE TONKIN: It is.
>>TONY HOLMES: And one of the problems we have in moving forward, I think, is that there's obviously -- if you look at the history of this task force, that there's an awful lot of history behind this and where we got to this. And we are still at the stage where we have two options on the table.
As I mentioned, the intent of how to use it is absolutely critical, which for me requires that the second option to be clarified.
>>BRUCE TONKIN: And you are okay with the first words? This is just if you look on the screen, I am talking about those words there. You are okay with that? Because now you no longer have the legal hold of the domain name there.
>>TONY HOLMES: I think that's a separate issue.
I would --
>>BRUCE TONKIN: We should look at the whole thing.
>>TONY HOLMES: Just to say I am happy with that is going beyond what I want to state. So no. I think the whole thing needs clarity around it.
>>BRUCE TONKIN: To be clear here, I understand your intense because you have made your intents clear and you have talked about that the last few times. I am challenging whether the words actually meet your intent. Because you are going to vote on it. If they don't, don't vote on it.
>>TONY HOLMES: They don't meet my intent, no.
>>BRUCE TONKIN: So what -- so I think what you would need to do between now and when we vote on it is make clear what you think the words would need -- you can say you are happy with either one of these two options, it's your choice, or you could say "I would be happy with a change here" that makes your intent clear.
>>TONY HOLMES: I think we are fast heading down the path of change.
>>BRUCE TONKIN: Okay.
Tony -- Tony Harris.
I am getting confused with the "H."
>>TONY HARRIS: I think I was pretty extensive yesterday in my views. I don't want to bore the council repeating them. And I think actually Greg and Tony have expressed what we feel on this, and certainly we need to consider change in the text.
>>BRUCE TONKIN: So just let me get this down.
So you believe the text needs to be changed, basically, to reflect your --
>>TONY HARRIS: To reflect --
>>BRUCE TONKIN: -- intent.
>>TONY HARRIS: -- exactly.
>>BRUCE TONKIN: Is that right?
>>TONY HARRIS: I am floundering in so many alternatives, but we do need to clarify that. Let's put it that way.
>>BRUCE TONKIN: Okay. Marilyn.
>>MARILYN CADE: I think that -- first of all, I will speak in support of the intent of Formulation 2, but note that I was surprised and educated yesterday to hear that the name of the name holder would not be included in either formulation. That was not my intent in supporting it.
So I think there needs to be change in Formulation 2, and one of the -- I mentioned one change already, which we talked about.
The second change, at a minimum, would be to ensure that the name of the registrant -- or let me say that differently.
The name of the holder, because people do sometimes register through proxies, and the registrant might actually not be the person who thought -- who intended to be the name holder.
What I'm looking for is the name holder to be included.
>>BRUCE TONKIN: The name of the name holder a.
>>MARILYN CADE: Name of the name holder, and contact information of the name holder. And I understand now that that's not included.
>>BRUCE TONKIN: Okay. So just on that front -- and this is the core to the privacy issue, I think, is the fact that you are not just saying -- this is what is says now.
Name and postal address of the registered name holder, and I think there has been a huge amount of sensitivity around that second part. I think you might find you get support around the name but to require the postal address of the registered name holder is where you are going to find there is lots of push back.
>>MARILYN CADE: Can I just respond to? I think rather than editing here, I'm interested in hearing what other councillors have to say.
And I -- and it's very difficult, but looking at this and looking back at what we wrote, I would suggest we --
>>BRUCE TONKIN: So that's what you have written up there now.
>>MARILYN CADE: Yeah, which doesn't capture the -- the end result of that does not -- will not be sufficient to meet my constituency's interest.
But I see minor changes that we could work on.
>>BRUCE TONKIN: Yeah. I just want to be very clear that when you say the name of the registrant, it's not the same thing as to say and contact information.
To give you context, in Australia you need to publish the name, and usually the name is a company name that can be looked up in other ways or name that can be looked up in other ways, but you don't publish the address.
>>MARILYN CADE: Sure. And can I comment on both formulations? Both formulations, if we can go back to them, and I think this was a substantive compromise on the part of some of the constituencies, that what we said the in the formulation is to provide the information sufficient to contact the responsible party.
>>BRUCE TONKIN: Yes.
>>MARILYN CADE: So I --
>>BRUCE TONKIN: Which is, to be very clear, is typically this, which is the admin contact.
So if you -- if I was just to sort of use an edit here, if you -- probably the sensitive wording in here, and I will just highlight that. I think if you remove that wording in red from there, so it's the name of the registered name holder, and then the rest of this stuff is pretty much consistent with the first part of it, which is -- because admin contact could be -- you might appoint somebody to act as your administrative officer. And if someone needs to contact you, they can contact you through administrative officer.
So it's the "and postal address" which is the sensitive thing.
Everything -- if I look at that definition there, everything in that definition would be consistent with -- with what's here. Okay?
So that is fairly consistent with the status quo, the first part of what's in the formulation.
What's missing is any reference to this (indicating). At the moment you have removed it entirely. And whether it needs to be removed entirely is the decision of the council.
But what I am saying is, from what I am hearing, the most sensitive part of that is the bit in red, because you are asking for the address of the name holder.
Okay.
So your --
>>GRANT FORSYTH: Bruce?
>>BRUCE TONKIN: Yes.
>>GRANT FORSYTH: Are we forming a queue?
>>BRUCE TONKIN: We are not forming a queue. We are going in order so you will be next once I understand what Marilyn is suggesting.
So have a look at the screen, Marilyn. This is what I have just summarized your --
>>MARILYN CADE: And the third edit that we have already referenced.
>>BRUCE TONKIN: Which is? Oh, okay. That the use -- "use of" should refer to use....
>>MARILYN CADE: Are we in agreement that in the council and elsewhere, when we use the name "registrant" we actually are in agreement that we mean registered name holder? Because --
>>BRUCE TONKIN: Well, I don't know. I use different, because I work across lots of different --
>>MARILYN CADE: I know.
>>BRUCE TONKIN: -- and they mean lots of different things.
>>MARILYN CADE: I'm happy with that.
>>BRUCE TONKIN: Grant.
>>GRANT FORSYTH: Thank you, Bruce. I am a little puzzled by your questioning and whatever it is you're doing at the moment with editing, insomuch that my understanding is the formulations we are talking about are formulations of the existing historic purpose of WHOIS.
And --
>>BRUCE TONKIN: Let me just clarify you.
They are going to be the purpose of WHOIS.
So what those are, going forward, forgetting the history, we are now putting a stake in the sand and trying to create a consensus policy on the purpose of WHOIS. And these are the two formulations -- the task force did not reach agreement and they provided two alternatives, and what I am doing in this exercise is making sure you as a council member understand what they mean, firstly, and then I am also -- if you think they are not what you thought they meant, let me know. And we're not going to make a decision. I am just capturing the input.
>>GRANT FORSYTH: Okay. So we are talking about purpose.
And to simply respond to the question that you have put to others and put to me, my response to that is that, not having been a participant -- an active participant in the WHOIS task force, I understand why that group has struggled to articulate and capture some agreed articulation of the purpose.
But -- and so all I can answer to your question is my view as to what the purpose should be is as our constituency has said before, which is -- and I think Marilyn has talk about the need to ensure that the information is able to be used to contact the registered name holder.
>>BRUCE TONKIN: Is that (inaudible)?
>>GRANT FORSYTH: Without getting into editing, because I have left that to the task force and I'm very --
>>BRUCE TONKIN: Grant, be very clear, you are going to make the decision. The task force couldn't reach agreement. You are going to make the decision. You need to read the report, and you have to vote on what you believe is right, you as an individual on the council.
>>MARILYN CADE: But not today.
>>BRUCE TONKIN: Not today, but I just want to make sure it's not a case of saying, okay, it's the task force's problems. It's not. Now it's our problem.
>>GRANT FORSYTH: No, I'm not saying that, Bruce. I guess what I'm saying is that the wording that I'm seeing up there, and I think this discussion -- perhaps the discussion yesterday as opposed to today -- has been useful in that it has clarified for some people that perhaps both of the existing wordings, in and of themselves, is not sufficient.
So in answer to your question as to what do I understand by them or what am I seeking from the purpose statements, all I can reiterate is the view, and it's a reasonably detailed view that has been put to the task force by the B.C., which is that purpose of WHOIS should be sufficient to be able to establish the contact for the registered name holder.
And I don't think I can, at this stage --
>>BRUCE TONKIN: Establish contact for the registered name holder.
>>GRANT FORSYTH: Correct. The information --
>>BRUCE TONKIN: But that's not the same as publish, so I want to be very clear. What you have said is consistent with both of those formulations now. I think. I'm just trying to get that right.
I suppose it's for the registered name holders....
Responsible party for a name.
To contact the registered name holder.
>>GRANT FORSYTH: Change the word of my statement from "for" to "of."
>>BRUCE TONKIN: He wants to contact the registered name holder; is that right?
>>MARILYN CADE: Yes.
>>GRANT FORSYTH: Yes, of the registered name holder.
>>BRUCE TONKIN: Basically, Grant, what you are talking about is changing this wording up here.
>>GRANT FORSYTH: Refining it.
>>MARILYN CADE: Refining it, yeah. Clarifying it. Is that what you are saying? I think that's what you are saying.
>>BRUCE TONKIN: Yeah, that's a change by my definition.
>>MARILYN CADE: Right. But it was just....
>>BRUCE TONKIN: So, should be able to contact the registered name holder. Is that right, Grant? Look up on the screen.
>>GRANT FORSYTH: I'd put it slightly differently than that, Bruce, and perhaps more eloquently. But I don't think I need to wordsmith. The purpose of WHOIS should be to provide information sufficient to contact the registered name holder.
>>BRUCE TONKIN: Yeah, but can I -- let's say I want to contact -- you want to contact Ross Rader. Is it sufficient for me to say (inaudible) on Ross's behalf, which is the current formulation? So I don't have to even identify who Ross Rader is. You just say to me I want to get in contact with the registered name holder, and I say, "I'm Bruce Tonkin, I will help you with any of those, but I won't tell you who Ross is. I will just pass on messages to Ross." Because that's what the current formulation allows.
>>MARILYN CADE: The current registration has the name of the name holder.
>>BRUCE TONKIN: I mean the formulation, not the -- There is no purpose of WHOIS defined yet, so that's what we are trying to do. What we do have is if you are asking what a registrar is required to do, they are contractually required to provide the name and postal address of the registered name holder. This bit here that I am highlighting is in the registrar contract for what they must do.
>>MARILYN CADE: And Bruce, I have a question, and I think we may need to go to the general counsel or the assistant general counsel about this.
It's my understanding that in order to change present contracts, that it takes policy to make that change.
So when you --
>>BRUCE TONKIN: Yes.
>>MARILYN CADE: -- say what we are doing is starting over on defining a purpose --
>>BRUCE TONKIN: Yes.
>>MARILYN CADE: -- I would also note that --
>>ROSS RADER: Marilyn, sorry to interrupt, could I make a point of order, please. I would like to hear from everybody at least once until we start hearing from everybody twice.
>>MARILYN CADE: Okay.
>>BRUCE TONKIN: Sorry. We're trying to go around. So I am just trying to capture, make clear what each member is understanding.
So if you are okay with what's on the screen now, Grant.
>>GRANT FORSYTH: Fine.
>>BRUCE TONKIN: Who is next? Philip.
>>PHILIP SHEPPARD: Thank you, Bruce.
I think in our attempt here, we are maybe losing sight of some of the higher level objectives that I think hopefully we are working towards.
And I think it's clear that the starting point to many constituencies is essentially the public interest.
Looking at issues to do with fraud and deception, and ensuring there is compatibility with data protection legislation, which is very clear in terms of -- and it's phrased slightly differently depending on which law you are looking at. But it's very clear that it is essential to specify explicitly the purpose for which data is collected. And for us, I think, our objective is to capture in the phrasing here that purposes in pursuit of the public interest that I have just described are not excluded by our definition.
How we do that and how we drill down in terms of linking to other things is irrelevant so long as we are clear that is the nature of what we're trying to capture. So that we can say fundamentally that one of the purposes behind the data collection that goes into the WHOIS service is for the sort of purposes that we would have in pursuit of public interest objectives.
>>BRUCE TONKIN: I just want to stop you a bit right there, Philip, because I think it's another classic area where people are going into different areas.
There is a difference between collecting the data and publishing the data. WHOIS is a publication mechanism. And so we're talking about the purpose of publishing this information.
>>PHILIP SHEPPARD: Well, that is not being made clear in terms of the definition. You are already going, to my mind -- It depends how far we want to go, but what we need to do is be fundamental about -- about purpose at its most basic level.
Now, if our phrasing the WHOIS service you think already has a set access issues, then we have already asked the wrong question of the task force. And I think that might have clouded some of the public comment we have had.
>>BRUCE TONKIN: But Philip --
>>PHILIP SHEPPARD: Because what we need to go back right to is in terms of what is the purpose of that data collection. And then how that subsequently comes into being is entirely matters to do with things that should follow.
>>BRUCE TONKIN: Yeah, and I think this is the nub of the issue, that we have asked the task force to look at the WHOIS service, and we haven't asked the task force to look at what data is collected.
>>PHILIP SHEPPARD: Correct.
>>BRUCE TONKIN: And they are different things, because -- and once data is collected, it can be used for all sorts of things, obviously.
But what we're talking about the public publication of the data or the publishing of the data via the WHOIS service.
So, for example, one of the pieces of data that registrars can collect is billing information, like credit card information. It's fairly clear why we are collecting that data, so that we can receive revenue for that domain name.
But publishing that data is a separate topic, and we're now talking about the publishing of the data.
>>PHILIP SHEPPARD: Yes. And that's why I think we have dissonance because there are misunderstanding in terms of how fundamental we are. And I think we asked that question of the task force initially, because we wanted to get to the highest level, if you like, in terms of objectives behind that and not into other questions that flow from that.
>>BRUCE TONKIN: So that the highest question is why are we publishing this in the public domain.
>>PHILIP SHEPPARD: Not publishing yet. You have already leapt. It's data collection. What is the purpose of data collection.
>>BRUCE TONKIN: That's what you are saying, but I'm saying we have asked the task force to look at the WHOIS service.
>>PHILIP SHEPPARD: That's what I'm saying. We have already leapt away from that and I think that's why there is dissonance in the task force and dissonance around the council.
>>BRUCE TONKIN: So you want to cover the purpose for which data is collected, but task force asked for the purpose of WHOIS.
And I guess you are saying you believe that the purpose of data collection should have been covered first.
Okay. Robin.
>>ROBIN GROSS: The noncommercial users' constituency is very solidly behind the first formulation that we have seen presented here.
The second -- the second formulation provides a lot of problems, and we have heard from a diverse range of groups who have supplied comments on this, and the idea that any use whatsoever could be appropriate for collecting this kind of information is much, much broader than the technical purpose for which this information was originally to be collected.
So we're concerned because a lot of times this information is currently being misused and abused. And so we don't want to see that continue in the fought. We are trying to curtail these abuses that we have experienced.
So a lot of the problem here comes from this worldwide broad publications from this person's personal information. Their home address, telephone number, things like that.
We've heard from privacy experts, EU privacy commissioners, who have expressed concern that it violates -- that the second formulation would violate the data protection laws in the EU.
We've heard from Canadian legal experts that it would violate Canadian privacy protections.
We've heard from privacy groups, such as EPIC, about the problems of things like identity theft that this formulation would permit.
The United States FTC has recently announced that identity theft is the number one crime in the U.S. right now.
And it costs the U.S. $58 billion a year.
And the wide separate disclosure of this kind of personal information is one of the biggest things that's leading to this problem.
We've also heard from the American library association about how this formulation would actually prohibit free -- chill free speech.
>>TONY HOLMES: Can I have a point of order, please?
>>BRUCE TONKIN: Go ahead, Tony.
>>TONY HOLMES: I thought the purpose of this session was to comment on the proposals -- and the text, not for advocacy for positions.
>>BRUCE TONKIN: I believe that's correct.
So -- because we already have that in the task force report on why people support --
>>ROBIN GROSS: Excuse me.
I thought you were asking why we were supporting one or the other.
>>AVRI DORIA: In relation to that, point of order.
I think that we've been hearing up to now is advocacy in the middle of people's comments.
So to say at this point we don't want to hear advocacy seems odd.
>>BRUCE TONKIN: That's not what I said.
I think what I'm looking for is coming back to the points do you support one of the two formulations, and would you like a change to those formulations is I think what I'm trying to focus on here now.
>>ROBIN GROSS: So I'm trying to explain why our constituency is solidly behind the first formulation.
>>BRUCE TONKIN: Yep.
>>ROBIN GROSS: But I'll leave it at that.
>>BRUCE TONKIN: Thank you.
>>NORBERT KLEIN: If --
>>BRUCE TONKIN: I just want to be absolutely clear.
You're behind the first, and I think you have made it clear.
But I'll just restate it.
You support the current wording of the first formulation, you require no changes?
>>ROBIN GROSS: That's correct.
>>BRUCE TONKIN: Thank you.
Norbert.
>>NORBERT KLEIN: I can just repeat what you said.
This is correct also for what I want to say.
Support the first formulation as it is at present.
>>BRUCE TONKIN: Thank you.
Ross Rader.
>>ROSS RADER: I'm kind of confused as to what I'm -- some of what I'm hearing.
And I'll try to resist the temptation to comment on that.
I think, speaking as someone who participated in the task force, that the terms of reference that we're acting upon were very, very clear, and the discussions that we had were very, very clear.
And there's a long, long, long detailed record that supports that.
And the resultant formulations, in my read of those, were also very clear to me as to their meaning and their intent.
The positions of the constituency, both those that are members of this council and those who are not, were, I thought, very clear to me.
It's now less clear to me what the respective positions are as a result of this conversation.
What I'd like to make very clear is that the registrar constituency continues to fully support, without question, formulation number one.
>>BRUCE TONKIN: Thank you.
Okay.
Maureen Cubberley.
>>MAUREEN CUBBERLEY: Okay.
Yes, thank you.
I think the first thing I want to start with -- and this is not advocacy, but just for clarification -- to me, the collection of any personal information has to be collected in a manner that's consistent with the information privacy laws that we have in Canada, whereby you give the information and you are told in writing exactly what that information will be used for.
So I think that that's point one.
Point two -- that's what I think that has to be part of the WHOIS policy so that whoever is registering the information knows exactly which part of the information will be used for what.
To get to the two formulations, I do believe that the purpose of the WHOIS information or the WHOIS registry, which is a publication, is to provide enough information to be able to establish and contact whoever is the ultimate registered name holder.
Now, Bruce, you brought up the question of whether that's mediated access through the admin contact or the technical contact or whether that's direct access.
>>BRUCE TONKIN: Yep.
>>MAUREEN CUBBERLEY: I don't know yet, okay.
And I'm not sure that that's the crux of the matter.
I think the real issue is that there has to be an ability to find out who that person is and that the privacy of the registrant be protected insofar as they may -- are made aware of the how the information will be used.
So formulation 1 or formulation 2, I'm not sure either one of them gets clearly at those issues.
>>BRUCE TONKIN: So you -- so one way we can put this up is, we simply can say -- we can do a vote and say who's in favor of formulation -- I'm not going to do it now, but when we have a meeting to vote on this, we can basically say who supports formulation 1, and who's in favor.
And we can see whether we have majority support for that or not.
Then we can vote to see who supports formulation 2.
So from what I'm hearing, you would actually vote against both?
>>MAUREEN CUBBERLEY: I would like to see some rewriting in order to make it clear.
>>BRUCE TONKIN: Okay.
So that's -- this is really the purpose of what I'm trying to understand here, is what more work needs to be done.
And I'm hearing from some that they are ready to vote on the formulation.
And we've heard from three council members that are very clear on their formulation.
I've heard other council members saying they wouldn't support either because they want some change.
Those council members that wouldn't support either need to be clear between now and when we vote on this on what changes they believe would need to be made.
So I'll sort of put you down as saying you would like to make changes, basically.
>>MAUREEN CUBBERLEY: Yes.
I think that if we simply look at the amount of discussion that we're having around formulation 1 and formulation 2 and the need to describe them in the detail in which they've been described and explained, that in itself says to me that they are not clear enough to go forward as they are.
>>BRUCE TONKIN: But -- that's your view.
But there's other council members that are --
>>MAUREEN CUBBERLEY: Certainly.
I'm speaking only for myself.
Thank you.
>>BRUCE TONKIN: So what I'm trying to understand -- I'm kind of doing the premeeting meeting here at the moment.
>>MAUREEN CUBBERLEY: Okay.
>>BRUCE TONKIN: Because if you're -- as I said, I have heard some that are very clear that they're comfortable with what's there.
And I've heard others that aren't comfortable with either.
But we're not going to repeat the whole task force thing here.
So we're probably going to have about two weeks where those that don't agree can start thinking about, you know, what wording they might have.
But ultimately, we're going to put it to a vote.
Because we're not going to go through a -- repeat the WHOIS task force.
>>MAUREEN CUBBERLEY: No.
Agreed.
Thank you.
>>BRUCE TONKIN: Avri.
Sorry, Norbert?
>>NORBERT KLEIN: I just would like to say why I made a very short statement.
I heard a lot of arguments coming up to here.
Then you said, no, no, no, no.
We just want to know 1 or 2.
That's why I said 1.
But I was under the impression the intention was not to continue the type of discussion we had to here.
>>BRUCE TONKIN: We're not creating a task force.
>>NORBERT KLEIN: So that's the reason why I just said "1," and nothing more.
>>BRUCE TONKIN: The only reason I've raised that, Norbert, is that you're in support of 1, and you're very clear.
Those that thought they supported 2 now no longer support version 2, if they want to make a minor wording change that allows them to support number 2, we'll do that prior to the next meeting.
I think everybody's very clear on their own intent.
But some council members are not satisfied we've yet captured their intent.
>>NORBERT KLEIN: I just wanted to explain.
>>BRUCE TONKIN: I think did you well.
Maureen, were you finished?
>>MAUREEN CUBBERLEY: Thank you.
>>BRUCE TONKIN: Okay, Avri.
>>AVRI DORIA: Thank you.
I essentially support formulation 1.
The basic reason is that the use of -- should be purely technical, should be purely for the technical needs of checking configurations.
And then any uses and abuses of it that have come through historical use of a protocol aren't relevant to its purpose.
In terms of reopening the discussion of the definitions, if we do reopen them, there are probably things I would like to see done to 1 to make it more strict in terms of its technical application only.
>>BRUCE TONKIN: But you -- if --
>>AVRI DORIA: I'm fine with going with 1 if we don't reopen the definitions.
But if we do reopen the purpose, then there's probably a certain amount of ambiguity that might allow nontechnical uses in 1 that I would like to see tightened up.
>>BRUCE TONKIN: Yeah.
Because one of the things --
>>AVRI DORIA:But I'm fine with it.
>>BRUCE TONKIN: If we're spread all over the place, we're not going to get a majority vote.
At the very least, I'm seeking a majority vote.
I'd love to get a supermajority, but if I can only get majority, we'll go ahead with the majority.
Because there's no point in having another --
>>AVRI DORIA: I'm fine with not reopening, but if we do --
>>BRUCE TONKIN: So you'd essentially support 1, but could be better.
That's --
>>MARILYN CADE: Bruce, Bruce -- (inaudible).
>>BRUCE TONKIN: I don't think -- Well, she may.
But I think -- we're just trying to get a sense of whether people support one or the other.
And I think the reasons for -- I think I'll accept it from Avri, because she probably has not been part of a constituency in the task force.
So --
>>MARILYN CADE: That's fine.
I'll talk with her at tea break or something.
>>BRUCE TONKIN: Yeah.
Yeah.
I think we're also just conscious of time.
Because we're ten past 11:00 and I think this is an important discussion.
Sophia.
>>SOPHIA BEKELE: I'll be quick.
I guess I have to be honest, I'm not familiar with the work of the task force on WHOIS.
And from what I hear from the various presentations and the hearings during this meeting, I gather some work still needs to be done.
But if I have to stick to which one, formulation 1 or 2, from what I gather, formulation 2, perhaps, is something I would agree with in the use of the domains.
But I guess the intent still needs to be clarified in that area, given that, for example, I may agree that the con- -- the names may be appropriate, disclosing the names, but to the detail of going to contact information may not.
So --
>>BRUCE TONKIN: So you support the intent of formulation 2.
>>SOPHIA BEKELE: 2.
>>BRUCE TONKIN: But may need to make some changes?
>>SOPHIA BEKELE: Right.
Thank you.
>>BRUCE TONKIN: And if there seems to be a group of people that are falling into that category, because you all (inaudible) I suggest that group meet after this meeting, preferable while you're still in Wellington, to come up with some words, and, you know, put them on the record for the council to consider at its next meeting.
So....
Bret, your comments.
>>BRET FAUSETT: Yes.
On behalf of the ALAC, as you may be aware, both Thomas Roessler and Wendy Seltzer and to a much lesser extent, I have participated on behalf of the ALAC in the WHOIS task force.
We have conferred with the other members of the At-Large Advisory Committee, and the ALAC unanimously has supported formulation number 1.
>>BRUCE TONKIN: Without changes; is that right?
>>BRET FAUSETT: Correct.
>>BRUCE TONKIN: You're okay with it, in other words?
Okay.
Ken Stubbs.
>>KEN STUBBS: Yeah.
Before I make a comment, I have a question about this process today, Bruce.
When we finish this, are we -- forget about advocating one versus the other.
Are we going to have the opportunity to at least discuss conceptually how this will be used, and what -- or are you just saying we're going to take a vote today and we're not going to get an opportunity to express any concerns about the process or anything like this at this point in time?
I'm not talking about the process used to determine where we are, but, rather, the process.
>>BRUCE TONKIN: Yeah.
In terms of the wider scheme of things, Ken, this is fairly similar to the new gTLD committee in the sense that the WHOIS task force is moving through a set of terms of reference, and the first term of reference is defining the purpose.
And once they've defined that purpose, it has implications for decisions in terms of, you know, whether they want to have tiered access or not, and other things.
We -- if we vote on, you know -- I expect we'll set up a conference call probably for a week or two weeks' time.
We will be voting on this.
This will then be sent to the task force to allow them to continue their work on that basis.
But the overall work needs to be completed and then put into a final report that we would give to the board.
And it's not until we've got that final report that you're actually making consensus policy.
Is that --
>>KEN STUBBS: No, no.
What I'm more concerned about is the perspective in which this is all going to be considered in.
And that's what I wanted to comment at some point in time, not right now, just give you a preference, but I'm hoping we'll have just a few minutes to comment on perspective.
I'm not talking about opening this all up again.
>>BRUCE TONKIN: So you want to do that after we've had this discussion but today?
>>KEN STUBBS: Yes.
>>BRUCE TONKIN: We'll put that on --
>>KEN STUBBS: All right.
Fine.
Basically, the registry constituency is in support of option number 1.
And that's it.
>>BRUCE TONKIN: June Seo.
>>JUNE SEO: I have the same comment as Ken did.
So....
>>BRUCE TONKIN: Okay.
Kiyoshi.
>>KIYOSHI TSURU: Thank you, Bruce.
The IPC is in favor of formulation number 2.
And as --
>>BRUCE TONKIN: Without changes?
But as it is?
>>KIYOSHI TSURU: As it is.
As -- as long as the general rationale of purpose is preserved.
We do believe there is a purpose element here.
And we've been talking about purpose around the table.
We think that other mechanisms, like the UDRP, talk about purpose of usage of a given domain name.
UDRP is policy.
What we're doing right now is policy.
So we're deciding policy regarding this instrument.
Just, you know, 20 seconds regarding the postings on identity theft.
More than 30 companies or individuals submitted comments in favor of proposition number 2.
Many of them talked about cyber fraud, identity theft, and the way of dealing with these crimes.
That is clearly purpose.
And that falls within proposition number 2.
Regarding the postal address and the name of the registrant, we also took for granted that this was present both in 1 and 2.
If we take a look at the registrar accreditation agreement, the 3.3s, it is very clear that the name of the registrant and the address for that registrant is required.
>>BRUCE TONKIN: It's required to be published, yeah.
>>KIYOSHI TSURU: So we think that's the status quo, and we think that that is currently not for discussion.
It's just -- it's just how the system works right now.
So just to summarize, number 2 underlying intent or purpose.
Thanks.
>>BRUCE TONKIN: Okay.
Cary Karp, are you still on the phone?
Okay.
So there's no one else on the line?
So the next steps, it's clear that some are clear and they're comfortable voting on one or the other.
And quite a few people have said they wouldn't vote for either in their current form.
But it does seem that there's some common interest amongst those that thought they supported 2 but now want to make some changes to 2. I would suggest that particular group of council members get together and confer after this meeting and publish, perhaps, some improved wording that captures what their intent is.
I think the intent is clear from the task force report.
But I'm not sure that the words match that.
Okay.
Ken, you wish to raise a general issue.
>>KEN STUBBS: Thank you, Bruce.
Yes.
I'm sorry to bother you, but I've spent a bit of time reviewing this thing, whole thing, going all the way back prior to the inception of ICANN, looking at the white paper, looking at the mandates that were put on the organization to begin with.
And, to me, to a great extent, what we're talking about is, how can we more effectively facilitate communication and the opportunity to effectively communicate with someone.
Now, we're talking about it on different levels, because the initial uses may very well have been primarily for technical communication.
And as we move forward, we find in the white paper concerns about the ability of intellectual property to effectively communicate the concerns and try to deal with potential abuses.
But, really, what we're looking at here is collecting information to effectively -- or to effectuate communication.
And I don't think anybody has any real concerns about the accuracy of the information that's being collected.
I think most people would say it has to be accurate.
Everybody has to be able to -- registrars have to have accurate information in order to be able to effectively communicate to registrants so that they can ensure that there will not be any issues on maintaining the service relationship that they have.
And law enforcement has to have accurate information.
The problem is not the collection of the information, but, rather, the ability to be able to have the right to access the information for legitimate reasons.
And we have -- in my opinion, what we really need to do is we need to dig down and figure out a methodology to ensure that that's really what it's being used for and how it's being used.
And so I'm --
>>BRUCE TONKIN: Ken, so that's -- sounds like, Ken, you want to be a member of the WHOIS task force.
Because that is -- all of those things are in the terms of reference.
>>KEN STUBBS: Yeah, but we're spending a huge amount of time talking about a definition, when, in effect, really, what we're really concerned about most of all is being able to enhance communication where necessary.
>>BRUCE TONKIN: First you need to define what's the purpose of publishing the information, which is the first part of the terms of reference.
Then you're looking at access control, as in who gets to access the information.
And then thirdly, you're looking at how can you improve accuracy.
So that is the whole purpose of the WHOIS task force.
So I think join the WHOIS task force, Ken, if you want to get engaged in that.
>>KEN STUBBS: Well, you know I am on the WHOIS task force.
>>BRUCE TONKIN: I didn't realize that.
Sorry.
>>KEN STUBBS: Yeah.
>>BRUCE TONKIN: So let me -- now that I know that you're on the WHOIS task force, all I can say is, the task force needs to get focused on its goals and get moving on them.
>>KEN STUBBS: That's the concern I have.
The point I'm trying to point out is we've been dealing with this for six years now, and we keep moving away from the real focus of this thing.
>>BRUCE TONKIN: Yeah.
>>KEN STUBBS: And that is --
>>BRUCE TONKIN: That's making it better.
>>KEN STUBBS: That's the whole point.
>>BRUCE TONKIN: Yeah, the whole point is to make it better.
Ross.
>>ROSS RADER: Yeah, I'd really want to underscore what Ken said as it relates to the duration of this task force and the progress that this task force is making and tie that back to the work of this council.
I'm unclear at this point what further progress we hope to make as councillors as it relates to this issue.
We have heard from at least those members which -- of this council that are also members of the task force that some of them are confident that they were actually voting upon in the task force what we were reading here today.
And we're hearing from other councillors that are also members of that same task force that they were unclear on what they were voting on.
And I'm really, really wary of taking on further suggestions from this group which is clearly unclear as to what even the items for discussion are.
>>BRUCE TONKIN: I'll just make --
>>ROSS RADER: My preference, Bruce, if I can state a preference, would be to simply vote on the report as it stands with one of the two formulations going forward, and put an end to this one way or the other. And if we're unable to do that, we should perhaps reexamine the terms of this task force and the charter.
>>BRUCE TONKIN: Let me explain.
We will be voting on it at a meeting to be determined.
It's just timetable.
It's either next week or the week after, there will be a vote.
And I'm giving the option to those that felt they could improve formulation 2.
It seems that there's a group that's already clear on their support for Formulation 1.
I'll just put Formulation 1 up for a vote.
If it gets a majority vote, that's the one we'll go through, simple as that.
But I'm giving others the opportunity, because the council has the opportunity to discuss and change things.
If those council members wish to make a change, we're certainly not engaging in task force process here.
They can edit a couple of words that makes them comfortable to vote on, and that's it.
>>ROSS RADER: That sounds like an excellent path forward, as long as we're extremely clear that further delay is not an option.
>>BRUCE TONKIN: The only reason I'm not having a vote here today is because the time of this meeting is not amenable for some of our members around the world and I want to give everyone an opportunity to vote during that call.
So we'll hold it at our usual time.
But the option -- whichever one gets majority vote is what goes through.
If Formulation 1 has majority support, we will start with that vote.
If the vote fails on Formulation 1, we can look at 2.
If the council can't reach majority position on any of it, then we can have that discussion that you suggested.
>>ROSS RADER: All right.
Thank you.
>>MARILYN CADE: Bruce, I'm sorry.
Could you just go back and clarify something?
I believe what I understand you to say is that councillors who are interested in providing some edits -- you said a word or two.
But I'm not sure that a word or two -- but the point is, councillors who are interested in providing edits to Formulation 2 should get together and put forward a single draft?
>>BRUCE TONKIN: That's probably the only you're going to get majority support for that position.
>>MARILYN CADE: I hear you.
>>BRUCE TONKIN: You, of course, as an individual council member can write anything you like.
But I'm going to start with Formulation 1, which is the only one I've heard more than one person support as it's currently worded.
So I'll start with that and we'll vote on that.
But you, as a council member, may put something forward.
You might edit, do whatever you like.
But I'm suggesting if you want to get it supported by the whole council, you probably want to start getting fellow council members together.
Yeah.
>>MARILYN CADE: I'm with you.
I was mostly questioning the "one or two words."
>>BRUCE TONKIN: That's entirely your control; that's right.
Yeah, Robin.
>>ROBIN GROSS: I just wanted to echo some of Ross's comments that we need to move forward with this, that this has been on our agenda for years, and we've had these formulations before us for quite some time now.
You know, we need to vote on this and it needs to be very soon.
That's our position.
>>BRUCE TONKIN: Thank you.
Suits -- that's my position, too.
You give me the date and I time that you can get all the council on the call, which I think will be about seven days' time.
>>PHILIP SHEPPARD: Bruce, if I may.
>>BRUCE TONKIN: Go ahead, Philip.
>>PHILIP SHEPPARD: I'd just like to suggest that voting on the wrong question is not going to solve issues for the future.
And we need to be very careful that we are going to vote on the right question.
Merely pushing it forward --
>>BRUCE TONKIN: Question -- we're voting on the --
>>PHILIP SHEPPARD: If we identify -- if we identify errors in our original briefing of the task force will not actually inform us for the future.
So it's not necessarily progress merely to take a vote for the sake of taking a vote.
>>BRUCE TONKIN: Okay.
I accept that point of view.
Okay, any other comments on this?
Okay. Next topic.
Dispute resolution process for names of intergovernmental -- international intergovernmental organizations.
The WIPO II had written to ICANN and said we think there needs to be some dispute processes around place names and names of intergovernmental organizations.
The general view, as I understood it, because there was a group of council members that looked at that request, was that we -- it's not in our mission or core values to create new laws around names.
We do have a UDRP dispute mechanism, because there's existing trademark laws, existing public policy.
And our dispute resolution process is to assist us in meeting with that law.
And I understand that the intellectual property constituency, which was Lucy Nichols, I believe, requested putting this on the agenda as that it does -- and I'm not by any means a lawyer.
But I gather that there is some public law or international law or treaty law or whatever you want to call it around the names of international intergovernmental organizations.
And so given that law, we could decide to create a dispute resolution process that is similar or in some way taking benefit from the UDRP process that's already developed.
Other than that, I'll perhaps leave it to Kiyoshi from the intellectual property constituency to, I guess, explain why you think that this is important.
And the council has the option to vote on -- and, again, we aren't doing this here -- but to vote on initiating the first step in a policy development process, which would be asking an issues report.
But, Kiyoshi, are you available to speak to this item?
>>KIYOSHI TSURU: Not as eloquently as Lucy.
But the issue relates to the fact that the Paris Convention does contemplate some sort of protection for names.
And, therefore, there could be -- or these names -- I'm not talking about the personal names.
We're focusing on the IGOs.
These names could follow within a dispute mechanism, dispute resolution mechanism.
The thing is, we would like to propose a PDP to clarify whether said names actually fall within the protection of the Paris Convention and whether this particular item of WIPO II should be further explored.
>>BRUCE TONKIN: That, to me, doesn't sound like the right thing for us to be doing a PDP. Because you're saying we have a PDP to interpret international law. I would think that we would first ask for the general counsel to advise us whether they do.
Because our PDP could be, once we accepted the fact one way or another, we could do a PDP to develop a dispute process.
But I don't think you could have a PDP amongst this group. I am a registrar, and I have no -- there's no way I have any expertise to contribute anything to that discussion.
I need lawyers to tell me that.
>>KIYOSHI TSURU: I think this is more related to the fact that the council has made it clear that there is no consensus regarding WIPO II in the past, and this is one issue that might have a point of contact with existing law and with disputes that may arise in the future.
It's more in that direction, not the interpretation of international law.
>>BRUCE TONKIN: So let me clarify.
Is it the position of the intellectual property constituency that there is protection under international law under this Paris convention or is it not?
>>KIYOSHI TSURU: There might be. We want to explore it further. If there is, we want to tip.
>>BRUCE TONKIN: But I still think we would struggle making that a council project.
Ken and then Ross and then Marilyn.
>>KEN STUBBS: I'm going to defer to Ross first because he was first. I will step in after him.
>>ROSS RADER: Thanks, again. I just wanted to underscore, I am not an engineer as Bruce sometimes accuses me of being. Bruce certainly is an engineer.
The one thing I think we do share, though, is that neither of us are lawyers. And certainly not international treaty lawyers, Kiyoshi. And I certainly don't feel qualified at any level to render an opinion of even what the Paris convention is never mind its relevance to this discussion.
What I do feel particularly qualified to speak on, though, is the consensus or lack thereof around WIPO II. And I think that that is more of a recognition of fact that there is no consensus within this community on that subject.
Nor do I feel particularly compelled at this point to re-open that can of worms. We have had many long conversations on that subject. I don't personally feel that the environment has changed around that subject and would prefer to deferral on opening up this recommended policy development process.
>>BRUCE TONKIN: Ken.
>>KEN STUBBS: I'd be very reluctant to start something from a bottom-up on a situation like this. Principally for two reasons. Again, going back to the white paper and some of the other issues.
There were clear, definitive issues that were supported by existing international law that ICANN was presented with at the point in time in which it was formed. Clearly, there is legitimate basis for enforcement of trademark rights throughout international conventions.
At the same point in time, the area we are talking about here, specifically geographical descriptors and so forth, and I'm not a lawyer --
>>BRUCE TONKIN: Ken, to be very clear, we are not talking geographic descriptors, this particular item we are talking at the moment, IGOs which is the names of international intergovernmental organizations, and Kiyoshi can you give us some examples so we are clear, of IGO names.
>>KIYOSHI TSURU: IGO, WIPO, WTO, UNICEF, things like that.
>>BRUCE TONKIN: So we are talking about WIPO.
>>KEN STUBBS: I apologize.
>>BRUCE TONKIN: WIPO, UNESCO, U.N., whatever. So they are names of --
>>KEN STUBBS: I understand that, then. And I guess I am heading off in a different direction, so I'll retract it at this point in time. But the concept is still the same.
>>BRUCE TONKIN: Maureen.
>>MAUREEN CUBBERLEY: I too think this is extremely important, they have come forward with a recommendation for modifications to the UDRP, and if that's what needs to be done, it needs to be done but not through our process here on GNSO council.
So I would support that.
>>BRUCE TONKIN: Support what, Maureen?
>>MAUREEN CUBBERLEY: Support the fact that we do initiate a PDP.
>>BRUCE TONKIN: Marilyn.
>>MARILYN CADE: I am very clear that we do not either make law or interpret law. We point to existing law.
Now, that doesn't mean that we couldn't, in some situation, decide that there were going to be a dispute procedure established on certain rules, if rules were developed as consensus policy.
But such rules should not be reaching into those areas which effect the decisions of governments, and where governments feel that they have the oversight and authority.
So I am very cautious about this.
I would suggest to the intellectual property constituency, I think the issue here might be that there was an interest in trying to find an area of satisfaction or an area to pursue because there were some concerns by some parties in intergovernmental organizations. I don't know how big a problem this is. I think it is not nearly the size of the place name problem. But we can't determine law or even interpret law.
So if somebody else in a legal standing, such as WIPO, makes the determination that there is legal protection under the Paris convention, perhaps that could come back to us.
>>BRUCE TONKIN: I think we had Olof available, too, because I believe the staff had some discussions or thinking on this.
But the real question we're asking is, is there -- I think what Marilyn was saying -- well, firstly, is there a clear bit of law that someone can quote us that's relevant, or if not, is the not the appropriate thing to then ask WIPO, whoever it is, to give us the chapter and verse we need to be referring to.
>>OLOF NORDLING: There has been rather extensive correspondence between WIPO, and not only WIPO and ICANN but other bodies as well. And I think that particular point when it comes to coverage -- well, the existence and protection provided by the Paris convention is tantamount to international law being established for the protection of intergovernmental organizations, names and abbreviations.
And I think also, if we go back to -- because the reason why this comes up at this point in time is really that the Intellectual Property Constituency has elaborated quite extensively in its constituency statement concerning the new TLD PDP on this issue, and also recognized -- well, Kiyoshi, I won't take issue with it, but as I read your constituency statement, it states pretty clearly that there is such protection.
So from that particular perspective, and in order to solve, albeit a subset of the WIPO II, I think it would be advisable to, from a staff perspective, to proceed at least with an issues report. Have a closer look at it. I think it is fairly well contained already from the IPC constituency, and we could advance it in an expeditious manner from the staff side.
>>MARILYN CADE: I'm sorry, Olof, would you just say again with the WSIS report?
>>OLOF NORDLING: No, I didn't say anything about the WSIS report.
>>MARILYN CADE: So we just had an error in transcription from something else you said. I just wanted to be sure that was corrected.
>>BRUCE TONKIN: So I have just put up on the screen, we just need the general counsel, I think, before our next meeting to actually give us some definitive advice on this.
I just want to be clear that we know what bit of law we're referring to before we start discussing it.
I just put up, this was in the intellectual property constituency's statement to the new gTLD policy development process. And it doesn't actually, I believe, refer to any particular law here.
>>KIYOSHI TSURU: But it does. If you follow the links there is a lengthy study of the Paris convention and interpretation thereof and the consequences of Article 10, I believe.
And our submission assumes that having the Paris convention, a specific section -- subsection regarding the protection of IGOs, that this is an issue regarding the protection of domain names that incorporate those -- those IGOs.
>>BRUCE TONKIN: So what I think we will do, Kiyoshi, and I think the council members feel well enough briefed on this to really make a decision, is that I will ask the general counsel's office to write a short paper for us that elaborates on the intellectual property constituency's position. And the paper, I'm not seeking a paper on the policy side but a paper on the existence of the law.
Robin.
>>ROBIN GROSS: Yeah, I just wanted to state, I'm a little bit concerned about initiating a PDP here.
I think that would essentially be asking what is really a technical body to be making legal interpretations, potentially even legal rules. And I am very uncomfortable with that idea.
So I'm against that, the PDP.
>>BRUCE TONKIN: Marilyn and then Ross.
>>MARILYN CADE: I'd like to clarify my position on if there is a legal body of law to refer to, then I fully support the idea that we would get the report from the general counsel, and an issues report does not launch a PDP. An issues report informs us. And so the decision would be made at that time.
I think it is important to do that.
I also -- my constituency is on the record previously noting that we would not support modifications or changes to the existing UDRP. That it would need to be -- any new dispute resolution processes would need to be specific to whatever they were resolving the dispute on.
Having said that, I don't actually think we would be making any interpretation of law. That's the point of seeing if there is law to point to. Because the way the UDRP is presently written, we make no interpretation of law. We merely say there is law. Here's a procedure to follow.
>>BRUCE TONKIN: Yeah, so it's actually clearly delineating the relevant law, isn't it. Yeah.
>>KIYOSHI TSURU: Just a clarification point, it's 6 TER of the Paris convention. So if we could just amend that in the minutes, please, in my previous intervention.
>>BRUCE TONKIN: Thanks, Kiyoshi.
Ross.
>>ROSS RADER: Thank you, Bruce.
If I heard your proposal correctly, Bruce, it's that we are going to request an issues report.
>>BRUCE TONKIN: No, I did not say that.
>>ROSS RADER: We are going to request a summary of the --
>>BRUCE TONKIN: No, I didn't say that either. I said I am requesting the general counsel for a paper that points us to the specific piece of law that exists.
An issues report would be saying what are the issues about misuse of intergovernmental names. We aren't even talking about that yet because we can't create, as Robin has pointed out, it's not our role to be creating law. We need to first find out if there is a law. And I'm seeking advice from the general counsel on what the law is.
>>ROSS RADER: Okay. In raising this issue, it would be my hope that we seek guidance from the -- guidance from the IPC on this issue to help us better understand what their issue is.
>>BRUCE TONKIN: The issues came from WIPO.
>>ROSS RADER: And we should be judicious in our use of the general counsel's time. I specifically heard at this meeting that, for instance, the dot biz registry is seeking renewal of their contract, and they are having difficulty getting general counsel's time. So to the extent we could have them focus on the higher-value priorities, it would be very useful. Given that the IPC is a collective of lawyers, we may be able to seek that advice directly from them.
>>BRUCE TONKIN: I think the IPC has attempted to do that in this paper but I'm still not clear.
>>KIYOSHI TSURU: That was my point exactly. What Ross has requested has already been submitted in our gTLD paper. And in a few paragraphs, there is an explanation of what the Paris convention is, what 6 TER of the Paris convention is and the consequences.
>>BRUCE TONKIN: Where is that, Kiyoshi?
>>KIYOSHI TSURU: Olof, could you -- is there a way of putting this up there?
>>BRUCE TONKIN: I've got it here. I just need to know where to go.
>>MAUREEN CUBBERLEY: Is it the annex 1 you are looking at which is the recommendation?
>>BRUCE TONKIN: It's a letter.
>>MARILYN CADE: Maureen, and it's also in your paper.
>>BRUCE TONKIN: This is the WIPO -- this is what's in the PDP report. I've got it on the Korean now. I can tell you that doesn't mean anything to me. I don't understand that and so I'm asking someone to explain that to me and I'm saying let's get the general counsel to at least do that.
>>MARILYN CADE: And maybe to augment Ross's support, I'd like to ask Kiyoshi a question.
>>PHILIP SHEPPARD: Is there a queue?
>>BRUCE TONKIN: Yeah, because I am on a flat bench I can't see people beyond -- I should have sat over there as I usually do.
Sorry.
>>PHILIP SHEPPARD: Thank you.
I was a member of the presidential working committee which worked at WIPO II and which failed to reach consensus.
I think your suggestion to request the general counsel a short paper is a good one. I hope John will be able to look at the minutes of that committee, and I wish him luck in summarizing it in a concise way. But indeed, all the debate in terms of the relevance of this particular piece of international law to that was aired very widely and by lawyers on that committee.
What that will inform us, however, I can tell you the result, is yes, potentially that law offers some protection. But then the question still rests, and, therefore, do we, ICANN, want to do something about it in the form of a UDRP and implement a separate UDRP specifically for that.
So that question will still rest with us. And I think at that -- it may be useful, I think, to have an issues report just to look at that. I think particularly focusing just on IGOs as a first step would be sensible, and one could imagine the process that would facilitate that, albeit with certain questions of legality that still rest. In particular, the specific difference between the trademark UDRP and any other UDRP that would apply to IGOs, is that the trademark UDRP always allows possibility to resort to national courts. The UDRP for international organizations would have some challenges with that backstop.
So that is the difference in characterization.
But I think going forward, a question on counsel just to summarize the particular bit of international law so we all have the same basis of knowledge would be useful. And then maybe going ahead anyway with an issues report which would look at the possibility of and pitfalls within a UDRP for IGOs would then be useful.
And on that point, we could then take a decision whether or not to go forward.
>>BRUCE TONKIN: Yeah. So I think that's right, Philip.
So essentially what we will do, coming back to my initial request, is I want a very short paper, like I'm talking a page, not a hundred pages, from the general counsel that just points to the relevant piece of law and a very short explanation of what that law means before I could feel that it makes any sense to request an issues report, which is more likely to be a longer 10, 20 page document, that deals with some of the things that I think others have raised. Like is this really an important issue? How many intergovernmental organizations are being misused? What are the issues? We need a bit of evidence to decide whether we need to develop a dispute resolution process which is coming back to just general use of resources. Like if we are dealing with four cases that have happened, that's not wide enough to justify the resources.
>>KIYOSHI TSURU: Bruce, yes, so our only intention is to put this on the table and decide whether, you know, it should be further explored or not.
And appendixed to this proposal is just submitting our opinion that country names are certainly not protected by international law, and that, therefore, no dispute resolution mechanisms --
>>BRUCE TONKIN: Is possible.
>>KIYOSHI TSURU: -- should be possible for country names.
>>BRUCE TONKIN: I thank you for that, and that no doubt will be a big debate when we come into new gTLDs. But I think that's the accepted position, yeah.
Okay. The next item, then, is redemption grace period, and this is something that Ross Rader put forward.
One of the things, I think, it's important to understand a little bit about some of the periods so that people understand what some of the issues might be.
But firstly, after a name expires, registrars in the past have typically provided some grace period which is determined on a per-registrar basis.
It's a grace period where the registrar, rather than deleting the name, will provide the registrant with a period of time to renew it. So let's just call that the registrar grace period for a second.
And then what was put in place a few years ago was that after the registrar has deleted the name, that the registry itself create a grace period, which is called the redemption grace period.
So some of the discussions that have happened in recent days and recent letters I guess are confusing those issues. So one of the things I would like to ask from Ross is, is he actually referring to the registry grace period or the registrar grace period. And, other than that, I'll leave Ross to, I guess, put his case why he believes the council needs to request an issues report.
>>ROSS RADER: Thank you, Bruce.
I tabled this concern in response to a series of communications from a registrant that were followed up by a report in -- I believe it was in the Wall Street Journal.
The specific period that we are referring to here is the redemption grace period, is what I have been discussing Bruce, which is the registry services proposal that was put forward I believe in Accra and adopted in the registry contracts.
So with the statement -- or the communications that I received was an implication that there was some widespread issue associated with the application of this policy. In the Wall Street Journal, Paul Twomey was quoted as saying that the policy had been used in a manner which was not intended and perhaps it deserved a second look.
In following up with this with the members of my constituency, with users, with anyone I could talk to, really, I wasn't able to discern the degree to which this is an issue. I suspect that this may not be an issue, actually, at this point.
Certainly the letter from the public interest registry to the Security and Stability Advisory Committee contended differently. However, this must be the day for my confusion. I'm somewhat confused as to why it is issue. If it is indeed an issue, why the registry constituency isn't raising it for this council instead of as an advisory or request to the Security and Stability Advisory Committee.
So I suspect in order to actually have my full support in moving this forward as a policy development process, I would request some further input from the user community and registry community as to the degree to which this actually is an issue, because it's not clear neither from my perspective as a commercial manager nor as a registrar, a member of the registrar constituency, that this is, indeed, an issue of high enough priority that we should actually be dealing with it.
>>BRUCE TONKIN: Comment just specifically relating to the letter that was sent to the stability and security committee. I did speak with the author of that letter, Ed, last night. And it was clear that his concern was that when people don't renew their domain name that they are not necessarily aware that somebody else will register that name.
And so if you had a name, let's call it XYZ, and you had it for a couple of years and you decided you no longer wanted to keep that name, a lot of consumers are not aware that someone else might register that name within 30, 60, 90 -- it doesn't really matter the period. And it's possible for them to use that name for a totally different purpose to what the original registrant had intended.
And that was really the issue. And he was suggesting there needs to be some consumer awareness.
I was a bit surprised because basically I would have thought it was pretty obvious that if you don't renew your name, someone else will eventually register it and they may use it for some purpose other than as originally intended.
So in this case it wasn't that the registrant didn't, you know, fail to be contacted. My understanding is that the registrant took a decision not to renew it. It was a definite decision, but they hadn't understood the implications of that decision.
And the implications of that decision was that somebody else subsequently registered it, but for a totally different purpose, which could damage the reputation of the original organization.
So I think that, to me, wasn't a redemption grace period issue. It was an issue of lack of consumer understanding, essentially, of that specific issue.
Now, if there are other issues, let's understand them.
But I think before we commit resources, it's staff resources, council resources, literally every one of these policy development processes is costing upwards of $100,000, close to a million dollars for some of these if you actually cost the staff time, at the very least, let alone our time. So we need to be careful we are allocating resources appropriately.
Marilyn.
>>MARILYN CADE: I'd like to speak on -- with a suggestion.
I am concerned that apparently people don't know to whom they should direct requests, because I don't consider it appropriate at all to send a letter like that to the Security and Stability Advisory Committee. I do however think that it is very appropriate to bring through a constituency or through staff to council feedback on how policies are working. And the operational staff, I think, are probably in a key position to be able to note whether their complaints are being received, et cetera.
I know we have talked in the past before about trying to have a bit of a feedback loop, an update involving a dialogue with the operational staff on complaints.
Now, one of the things we do keep hearing is people don't know, people don't know.
I think that's valid feedback. I don't think it takes policy to address that. I think it takes things like advisories, articles, you know, earned media, et cetera.
And perhaps those two things, a process that we schedule for ourselves for dialogue -- I'm not talking about detailed statistical reports from the operational staff. I'm talking dialogue and feedback on how certain of our policies are working. And separately, looking at how we can -- how ICANN can provide more awareness within the scope of their mission.
>>BRUCE TONKIN: Yeah, go ahead, Ken.
>>KEN STUBBS: Just a quick response to a couple of the comments.
First of all, I don't think that there's any reason why someone should not feel free to express their concerns to a committee like the security and stability advisory committee. What is a concern to them, which they may feel has an implication that the committee should consider, I think they have the right to bring before the committee.
The committee will decide whether or not it's relevant and something that they need to deal with.
The last thing in our world that I would want to do is to dissuade anybody from trying to use the process in the manner they felt would be most effective to benefit the ICANN community.
It's clear to me that the letter, the tone of the letter, was one of concern and trying to better serve the community. And I just -- I don't want to try to put any barriers to communication on the part of anybody out there.
That's all.
>>BRUCE TONKIN: Okay. Any other comments on this one?
>>MARILYN CADE: Yeah, Bruce, I'm sorry.
I don't -- here is my concern.
The information needs to also come to us. And if it gets directed to a different entity and gets tied up, then perhaps the body that should be dealing with it or at least aware of it could be delayed.
>>BRUCE TONKIN: Sure.
Ross.
>>ROSS RADER: I'm hearing some good things coming out of the discussion.
So I do appreciate the time council has taken to consider this.
And I fully hear the administrative communications issues that Marilyn is describing.
And I think that we can certainly do something about that.
There's some work there that we can take up as part of our administrative committee.
And I certainly hear and understand and agree with Ken's description of allowing the participants to make best use of the process as they see fit.
I think without hearing a substantial and broad support for moving this forward as a policy development item, that I would like to withdraw this at this time, but certainly thank the council for their -- for the time they've taken today.
>>BRUCE TONKIN: Thank you, Ross.
So the final item is just issues arising from the GNSO public forum.
And we are pretty much out of time.
The one I did want to respond to was, there was a question put yesterday about what happens when the council has reached a supermajority vote on an issue and what's the obligations of the board.
Up on the screen there, just in response to that question, is, in the event that a council reaches a supermajority vote, the board shall adopt the policy unless, by a vote of 66% of the board, determines that the policy is not in the interests of ICANN.
If the board did reach a 66% vote against our proposal, the board will articulate the reasons for its determination in the board statement and submit that board statement to the council.
The council then has the opportunity to review that board statement and has the opportunity to meet with the board to discuss that.
So there's a meeting between the council and the board.
And at the conclusion of those discussions, the council can meet to either reaffirm its original recommendation or modify it and provide a supplemental return to the board.
And if the board is able to reach a supermajority vote on that supplemental recommendation, the board shall adopt the recommendation unless a 66% of the board determines that it's not in the best interest -- that's a bit of a circular loop there.
As Ken had pointed out yesterday, the board does have the opportunity, by a 66% vote, to vote against a council recommendation.
If a council only reaches a majority vote, then the board can turn it down by a simple majority vote.
So, in summary, if the council reaches a 66% vote, the board can only overturn that vote with a 66% vote of the board.
If the council reaches a simple majority vote, then the board can overturn that vote by a simple majority.
So I hope that clarifies that for those that asked the question.
So at that point, unless there's any other business from anybody, -- yes, there is, actually, a piece of "any other business" before grant gets to go.
And what have we got in that department?
Something.
Okay.
One of the things I would just like to do is have a formal vote of thanks for Grant Forsyth, who has resigned from the council due to I guess personal circumstances.
And so -- as in he's got a different employer.
And -- but I think grant has been a longstanding member both of the DNSO and GNSO, and has certainly contributed immensely.
So first I'd like to just formally request a vote of thanks for grant.
All in favor, please say "aye."
>> Aye.
>>BRUCE TONKIN: Any against?
Any abstentions?
Okay.
So that vote is passed.
And I'd just like, on behalf of ICANN, to provide grant with a small black box and an envelope.
[ Applause ]
>>GRANT FORSYTH: Thank you, Bruce.
And thank you, ICANN.
And, hopefully, the ticking will continue before I finish the few words I just wanted to say.
And thank you also for the words that you just expressed and also for the lack of any dissenting vote.
It's good to have consensus.
Let me just say quickly that I have greatly valued and sometimes even enjoyed my time here on council.
And would urge people who may consider or question the work of the council to understand, certainly from my point of view, the importance of the work and also to appreciate we're all sitting here as volunteers, and it takes a huge amount of time and effort.
And I'm always very appreciative of my colleagues' input into the work we do.
So let me just say I've enjoyed my time here, meeting the people, dealing with the issues, and I'm sure it's going to continue.
So best of luck to you all.
Thank you very much.
>>BRUCE TONKIN: Thank you, grant.
And also there's one other thank you I'd like to make, and that is to Jordyn Buchanan, who has been the chair of the WHOIS task force, and since 2003, apparently.
And Jordyn has certainly had a difficult role there.
It's been a fairly contentious topic in that there are clearly very different points of view.
But I think he has managed to chair that task force in a very neutral way and has the respect of all the task force members.
And Jordyn is also leaving his current employer.
I believe he's joining the same employer as Vint Cerf.
And whether that will be a continuing trend for ICANN, I don't know, as they pick off the chairs of the relevant parts.
But certainly I would like to also call for a vote of thanks for Jordyn in his role as the WHOIS task force chair.
So all those in favor, please say "aye."
>> Aye.
>>BRUCE TONKIN: Any against?
Any abstentions?
Okay.
So we'll formally convey that thanks to Jordyn, who is unable to be here this week at that point.
[ Applause ]
>>BRUCE TONKIN: At that point, I'll formally close the meeting, and thank you for your attendance.
(12:05 p.m.)

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