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Individual Statements From Board Members

02 March 2006

Separate Individual Statements Submitted for Publication by ICANN Directors

The following are individual statements made by Board Members relating to the 28 February 2006 Special Board Meeting, although some of the comments are the same or are clarifications of statements made during the Board Meeting:


Separate Statement by Board Member Paul Twomey (President and CEO) as delivered during the Board Meeting

I just want to make three points.

First of all, I want to express, both as the CEO and as a board member, my appreciation to all the members of the community who have been involved in dialogue on this proposed settlement and agreement. I have very much appreciated the thought and the input and the interest and the concerns they have expressed.

The input from the community was very valuable and has certainly contributed, I think, to a better outcome.

Secondly, I'd like to recognize that this particular issue has been something that in some respects has dominated the last two years of my being the president, indeed since the beginning of the Site Finder episode. I would like to express for myself and for the staff who have been involved, and I know for all board members, past and present, who have been involved in this whole process, that it has been a very difficult process, constrained by a lot of what is the possible as opposed to what one would like to really achieve, constrained by the realities of past decisions and the related multi-party nature of the related agreements, made more complex by the laws governing public announcements concerning listed companies, as well as the "simple" pressures of the discussions.

But I would also like to recognize, that in their striving to achieve the best that one possibly can within limitations, the board and staff's dedication to trying to achieve the best possible outcome for the ICANN community. And that I know this process has been controversial and has caused lots of discussion, but I remain very impressed and pleased by that commitment that I have seen amongst my colleagues to try to constantly ask the questions: what's the best thing for the ICANN community and the best thing for the Internet, as we have gone through this process.

The final part of my statement is that as a community we now have a lot of other issues that are very pressing, and I hope that we find opportunities now to really talk to those. In particular, I think the whole issue of new gTLDs and how they introduced and the issues of internationalized domain names in the TLDs, to give just two examples, are defining issues for the ICANN community over the next year or two. And I really hope we can direct our attentions now to, as Mouhamet said, really addressing a lot of issues that we have before us that are important for the wider body of Internet users.

Thank you.

_________________________________

Separate Statement by Board Member Raimundo Beca to clarify comments/statement made during Board Meeting that could not be transcribed due to Technical Difficulties

Given:

1) That VRSN litigation against ICANN doesn´t cover the existing 0 % price cap on top of the current $US 6 rate;

2) That VRSN offered a $US 3 rate on its recent bid on .net;

3) That nevertheless, the settlement agreement under consideration provides the right to VRSN to increase its rates in a 7 % a year in four out of the 6 following years, without the need to justify on costs this rise;

4) That the agreement provides also the right to VRSN to increase its rates in the remaining 2 years if justified by costs;

5) That the role played by the DOC and the DOJ in the achievement of this agreement has not been really clarified to the Board;

6) That settlements of price ceilings are price regulations, which normally are based on cost studies, which doesn´t seem to be the case in this agreement; and

7) That I have a personal background and experience in price settlements, which implies that it's absolutely unacceptable for me to aprove a 7 % annual rise on rates not justified by costs;

I have asked unsuccesfully that a new round of negotiations be held with VRSN on this clause.

To this extent, I'm forced to vote no on this agreement. For the rest of the issues of this agreement, I fully suscribe the statement made by Susan Crawford at this regard.

_____________________________________

Separate Statement by Board Member Susan Crawford

The proposed new Registry Agreement with VeriSign poses unacceptable risks to the values that underly ICANN's mission. For this reason, entry into this proposed agreement is not in ICANN's best interest. ICANN is facing extensive criticism around the world, and its top priority should be to act in accordance with its values of increasing competition, acting transparently, and being accountable to the Internet community. This approach has the advantage of being both pragmatic and principled.

First, entry into this agreement will undermine ICANN's integrity. The lawsuit initiated by VeriSign primarily concerned the absence of a predictable process for the rollout of new Registry Services. That process has now been the subject of an extensive policy development effort, and the policies resulting from that process can be made part of the .com agreement when it is renewed in November 2007. Most of the energy behind the lawsuit has dissipated. The claims made by VeriSign have have either been dismissed (as has happened to the antitrust claims) or resolved (as has happened to most of the "registry service" unhappiness). Yet ICANN is taking the occasion of this almost-irrelevant lawsuit to ensure a major source of funding for itself that appears to be based on the assumption of an (as-yet-unapproved) $50 million/year budget. In exchange, the proposed agreement provides that the existing price cap on .com registrations be raised.

All of this raises the spectre of substantial institutional self-dealing, carried out with a particular litigious registry. If ICANN is going to succeed on the world stage, it should set its budgets with reference to the costs of accomplishing its core mission, not on what it can extract from such negotiations. If ICANN has reached the view that it should not regulate prices and should get out of the business of governing registry business models, then that would be a welcome development. But this ought to be an explicit deregulatory policy adopted across the board that affects all relevant actors.

Because ICANN is not a government, it cannot tax. Because it is not a for-profit corporation, it cannot sell shares. All it can do is use its reputation and excellence in service provision to attract funding. This agreement does not enhance ICANN's reputation.

Second, the proposed VeriSign registry agreement undermines ICANN's mission as a forum for policy development. Although financial terms are not a matter for consensus policies that can be automatically mandated for registries under contract with ICANN, some items removed from the consensus policy realm by this agreement (such as the use of data and the process for registry services) are appropriate for consensus policy development. Additionally, the ICANN forums that now have responsibility for policy development would like to advise the Board and the community as to their views on the financial terms to which registries should be subject. Avoiding all of this undermines these policy processes. ICANN has often appropriately claimed that its legitimacy is founded on its bottom-up private policy generation. To sidetrack this experiment in private rule-making by allowing a single litigious registry to get a better deal than others undermines ICANN's core mission. ICANN should strive to be a model of private self-governance.

Third, the proposed VeriSign registry agreement will undermine ICANN's effectiveness. We seem to be trading off the support offered ICANN by those active in ICANN processes in favor of our budgetary needs. No constituency within ICANN has supported this arrangement, and most (not all with monetary aims) have opposed it. Although I am sympathetic to ICANN's need for funding, this particular tradeoff does not seem wise. I am not saying that we should be ruled by a mob. But this is not a mob: these are the people and the groups that are likely to be active in supporting or undermining ICANN's legitimacy in international fora in the years to come. Their views are relevant. We have not adequately taken them into account.

It is not necessarily true that rejecting the proposed registry agreement will automatically cost ICANN $5 million in legal fees, because another resolution of the litigation may be reached. If projections of the litigation burdens here stem from threats by VeriSign to impose litigation costs on ICANN that are not reasonably related to the issues actually being litigated, then that is yet another reason not to enter into this proposed agreement. Our actions now must be informed by the values that underly ICANN's operations, and those values are to promote competition, act transparently, and remain accountable to the Internet community. We should avoid the appearance of carrying out special deals that shore up our treasury at the expense of our accountability to that community. We should reject the proposed new registry agreement.

Rejecting this agreement will require ICANN to litigate with VeriSign. We have excellent legal representation in which I am personally highly confident. This litigation might be settled by entry into the settlement agreement to which ICANN and VeriSign have already agreed, without tying settlement to the proposed registry agreement. The existing registry agreement can be conformed in 2007 to the then-current registry agreements. (I realize that it takes two parties to settle, but that also means that ICANN's agreement to this set of arrangements should not be taken for granted.) We will also need to work on explicitly adopting, with the advice of the community, a deregulatory set of policies towards registries, and we will need to increase competition to .com by continuing to open new gTLDs on a measured basis. We will need to speak openly about how ICANN's budget can be best tied to ICANN's mission, and how that budget should be funded. Most importantly, we will need to evaluate how ICANN should be structured and should operate for the future, so that crises of confidence like that created by this proposed agreement can be avoided. We should take this opportunity to engage together to make ICANN into a "city on the hill" —a model of private self-governance. This is the most pragmatic approach available, and it is in the best interests of ICANN.

_________________________________

Separate Statement by Board Member Demi Getschko

This is a very difficult decision. I'm really not comfortable with many aspects of this settlement: the ceiling clause, the "possible perpetual" renewal and so on...

I really would like to have more time and room for negotiations on this. Giving that, as the available information to us points, we are really restricted on time to take this decision, and giving that there are a lot of more international and even more important issues to discuss, at this particular opportunity I'm voting to proceed.

My vote is yes.

______________________________________

Separate Statement by Board Member Joichi Ito

I would like to express my appreciation to the ICANN community and to the staff and others involved in the settlement negotiations for all of the work and input during this very difficult period. I had great trouble formulating my final view on this decision which involved a number of layers and interests. Having considered all of the feedback from the community as well as the conflicting opinions of people I respect very highly, I have decided to vote "no" on the approval of the settlement because my belief is that although the settlement has a great number of short term merits, not approving the settlement might have a greater benefit for ICANN and the community in the long run. However, if the board decides to approve the settlement, I will support this decision and commit to supporting the ICANN community and staff in every way to most effectively move forward on this basis.

_______________________________________

Separate Statement By Board Member Veni Markovski as clarified from statement delivered during the Board Meeting

Now, there will be many questions, many pros and contras, but for me the main question is that finally this discussion is over.

Here's what I think about my vote and the agreement itself.

I think the agreement is a positive step forwards, as it puts an end to a long-lasting tension, which was driving ICANN away from its main job. I also think it's important to note that now the agreement needs to be approved by the DoC before it's really enacted. That's additional step, which makes sure that agreement by ICANN are taken in accordance with the laws.

I don't believe ICANN integrity will be undermined by this agreement. It is true that for some of the US-companies this agreement means less profits, and for some - more profits. But there's no possibility to have both parties right and happy. But, what is more important - I don't think the registrants will feel difference in pricing. In some ways, it will actually encourage competition - with other top-level domains (TLDs), and hopefully - with the .us, which is not a very popular TLD in the USA.

I think that the policy development in this case did not happen the way it should have (now, some question whether this was a policy development question). But I don't think it's ICANN's fault. I think it's a failure of the ICANN community, and the continuous processing in which it has been involved for quite a while. I told a number of times the ICANN community, during our meetings with them - don't just tell us the problems, we know them. Suggest the solutions, participate in their formation. That didn't happen. Further, we never heard from the ICANN community their conflicts of interests, and we could never be sure when someone speaks whose interests they represent.

I don't think ICANN is betraying the people who genuinely supported ICANN throughout the years by settling this case. I think that we took a very difficult decision, but it's the usual way - people expect the Board to give them solutions, so that they can criticize both them, and ICANN Board. I am already used to this...

I also think that the people we heard in the previous months are the usual ICANN community - it's not the global internet community that ICANN is supposed to protect and make sure the Internet runs for them, too. We basically heard only the US-business, and the businesses that deal with .com domains. There are several explanations about it - a) the others are not so noisy, b) the others don't care, c) the others agree with the a).

I am not concerned about the budget that ICANN would / might have. Actually the Board is the one to approve the budget. I would urge the community to pay close attention to the structure of the budget, and participate actively in its formation. That's the way to deal with it, and make sure that if there is any excess money, it should be used for projects in developing countries.

And I don't think that the big achievement of this agreement is the saving of USD Millions for litigation, although it's still a feature, not a bug.

The agreement is not a victory for VeriSign or for ICANN, it's a common sense in action. To blame ICANN with the words, "VeriSign wins" or "it's a victory for VeriSign", or "ICANN lost" means not to have in mind all aspects of the agreement but only one. That's not fair to ICANN, to ICANN Board, and to ICANN staff.

I agree with Susan that we need to start to talk about ICANN and its role in a changing environment - although again I think this is probably one of the wrong ways to do it - top-bottom, instead of bottom-up process.

I fully agree with the following by her, "Most importantly, we will need to evaluate how ICANN should be structured and should operate for the future, so that crises of confidence like that created by this proposed agreement can be avoided. We should take this opportunity to engage together to make ICANN into a "city on the hill" —a model of private self-governance. This is the most pragmatic approach available, and it is in the best interests of ICANN."

I hope it's a good day for the Internet, and I hope that now it's over, we'll be able to focus again on the important issues, which have been put on the second stage by the urgent ones.

P.S. After reading my notes again, and seeing some of the comments on the vote, I need to make some edits; instead of changing my notes above, I'd rather add some here.

My decision was not easy; it would have been much easier to abstain or vote against it - I wouldn't need to explain anything, certain people would love me for my position... And for sure, if I have been thinking of running again for the Board this year, a negative vote would have made my chances higher ;-) I think though, that the fact all of the people whose term expires this year, have voted in favour of the agreement should signal the critics that either none of us wants to run again, or that we are taking our duty as directors more seriously than people believed we were able to. Because exactly that fact signals that we were more free to take the decision, not having to carry the burden of thinking, "Oh, how are we going to live with this until the end of my term." And, by the way, I don't think this decision solves only the litigation (regardless of my belief that even the bad out-of-court agreement is better than the good court verdict). It solves many problems, and the solution is in the interest of the development of the Internet.

But at the same time, knowing it would have been a very popular vote, I have to admit I am not fighting for glory, and certainly not for glory in the ICANN environment. What I want from ICANN is the Internet to run smoothly, the DNS to work, and to be able to get an IP address for my servers. And for every user that is on line.

However, every person around ICANN has their own opinion on every issue discussed by the Board. And everyone believes their opinion is the right one.

Some people blame the Board as if it is working in conspiracy - regardless of the fact that there are 15 Board directors, some of them famous bloggers, with active blogs, and no one has stopped a director from publishing anything, afaik.

Some people claim that the Board follows staff recommendations without challenging them.

And some people believe that ICANN is not needed at all, and it should not exist.

I am not so sure all of the above is right.

Well, it has always been easier to criticize than to send positive contribution to ICANN. Why not, I can criticize ICANN on my own quite well!

Note that I always use "some" - because I don't believe all people around ICANN are thinking the same way.

In any case, we'll see soon whether this was a "good day for the Internet", or a "death sentence" for ICANN.

_________________________________

Separate Statement by Board Member Hualin Qian

Based on the following consideration, I voted in favor of the proposed settlement and agreement between ICANN and VeriSign.

1, the ICANN Board and Staffs have been working very hard and did their best on the related issues. The feedbacks from the community have been also seriously considered. There is no perfect solution to satisfy everyone's requirement of the Internet community and stakeholders.

2, the most important thing for the Internet community is to keep the Internet as stable and reliable as possible. Therefore, paying a few more dollars for each registration to help the infrastructure become more sustainable and survivable from different kind of serious attacks is worthy.

3, to encourage long term investment to strengthen the DNS system are also important for the stability of the system. From the competition point of view, registrants have alternatives of choosing different registrars or even different gTLDs. This will eventually set pressure on the registry operators, and the price and service quality will be improved by this kind of competition.

4, therefore, I believe my decision is a better choice to protect the interests of the majority of Internet community. And I beg pardon from those whose interests might be impacted by my decision.

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Separate Statement by Board Member Njeri Rionge

Herewith my statement.

I have considered deeply all concerns from the community and appreciate the extensiveness of the inputs and shared thoughts with me and the rest of the board. I have objections about some points of the agreement, further perceptions from within the community on the reasoning behind the proposed negotiations. It's also my belief that the best efforts were taken from the Board, the staff, the legal representatives and other persons or constituencies from ICANN in order to achieve the best possible agreement.

I also have considered the amount of work, time and funds already spent on this subject, remembering that such money comes from the community, while we have many other pending issues for the Board, which are on hold due to the discussions on .com agreement; we need to improve the efficiency of our work in the interest of the community and doing so to avoid bringing to ICANN, risks that should have been agreed before hand with the communities involved.

I'm obviously worried about the difficulties and obstacles that shall arise from ICANN's decision on the .com agreement, but at the end, we need to balance the pros & cons. I have conclude that rejecting the agreement may not contribute to improve the agreement itself, and may postpone many other issues the community requires ICANN to address. But, the community with whom we are representing are clearly not in favour of this agreement and for this reason I vote No.

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Separate Statement by Board Member Vanda Scartezini

I have considered deeply all concerns from the community and appreciate all that shared their thoughts with me. I still have important objections about some points of the agreement, as the data use and the perpetuity clause. It's also my belief that the best efforts were taken from the Board, the staff, the counselors and every other person or entity from ICANN in order to achieve the best possible agreement. I also have considered the amount of efforts, work, time and funds already spent with this subject, remembering that such money comes from the community, while we have many other issues in the Board's pipeline, and that are on hold due to the discussions about .com agreement;

We need to improve the contribution of our work to the community and doing so to avoid bring to ICANN's many issues that should be agreed before hand with the parts involved. I'm obviously worried about the difficulties and obstacles that shall arise from ICANN decision on the .com agreement, but at the end, balancing the pros & cons, I have conclude that rejecting the agreement won't contribute to improve the agreement itself, and may postpone many other issues the community is also claiming to be addressed;.

As a consequence of this considerations my vote is yes.

________________________________________

Separate Statement by Board Member Peter Dengate Thrush as delivered during the Board Meeting

I vote no, and I'd just like to say that I appreciate it's a tough issue and that lots of good work has been done by all concerned in the community and the board and by the staff. But my eventual conclusion by a narrow margin is that the agreement, linked with the .COM renewal is not in the best interest of ICANN.

I am concerned about the concept of perpetual renewal and would have preferred that (which was not approved by the community when it was first started) was something we should have been looking to renegotiate back. And I think linking that with price issues, again without reference to the community, is not appropriate.

I am also concerned about other matters which have been raised extensively by the community, and just mention at this stage the exclusion of data mining.

I think we have had a problem in that with our policy development process, some of the timing is out of step. That's now caught up and agrees with much of what's in the agreement. I think VeriSign's main concenrns) has now really been dealt with by that process and that we don't need to link .COM renewal to the litigation.

I am also concerned about the almost unanimous outcry from the community, but I would, as a director, have no hesitation in voting for this if I thought it was in ICANN's best interests.. But as I don't, I have become very much concerned about the consequences of the lack of support at this time in the community.

I'm also concerned about the linking of the ICANN budget with all of this process and the fact that as far as the community was concerned, it was all negotiated behind closed doors.

So I'm voting no.

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