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March 9, 2000 Cairo, Egypt ICANN Public Forum ICANN Public Forum 3/9/00 - Cairo, Egypt I. Introduction – Dyson A. Thanks to local organizers II. President’s Report – Roberts A. Board took action in LA to implement UDRP 1. Activation began on December 1, with phase-in for participation of NSI, now fully in effect. 2. Fifty disputes have been brought. Three providers now involved. B. Proceeding with implementation of Membership. Markle funding for startup. Project manager hired. Membership site created, applications now being accepted. C. Registrar accreditation. More than 100 applications received. Approximately thirty companies are now operating as competitive registrars in .com, .org, and .net. Program going well. Substantial administrative work involved. D. Transition arrangements from IANA. Per transition agreements with USG, contract to make transition was recently executed. E. Staffing: Seven of thirteen positions have been filled; still seeking six more staff. F. Lease with University of Southern California for additional space. G. Budget – material posted on the web. III. Reports A. Root Server Advisory Committee (Jun Murai) 1. Presentation delivered B. Address Council Report 1. Presentation delivered 2. Meeting to be held in May in Budapest, Hungary. C. Independent Review Procedure (McLaughlin) 1. Most work has already been done by Independent Review Advisory Committee. 2. Principles from IRAC accepted in Santiago. Staff converted principles to proposed policy. NSI contracts delayed adoption from LA to Cairo. 3. [http://www.icann.org/cairo2000/proposed-indreview-policy.htm] 4. Mission read - to declare whether ICANN Board has acted consistent with provisions of ICANN Bylaws and Articles of Incorporation. • Addition: Second sentence of mission (“for reviewing determinations regarding the presence of a consensus on which an adopted policy is based”). 5. Panels to be groups of three, randomly-determined. 6. Nominations (section 4) – want independence from ICANN Board without infinite layers of complication. Note that IRP Nominating Committee can’t hold an existing office within the ICANN structure; want former judges, individuals with legal training, others with experience judging disputes. 7. Powers – note no power to tell ICANN Board what to do, rather to make declarations and to put items on ICANN’s agenda. 8. Little public input on proposed policy, perhaps because policy reflects principles resulting from much public input. 9. Thanks to Chair, Linda Wilson. 10. Outstanding question: Whether At-Large Council should be allowed to name Independent Review Nominating Committee members. Decide tomorrow depending on outcome of At-Large Membership tomorrow. 11. Public comment? • No questions from public. • Cerf: Committee asking that Board endorse report and procedures? Or just making a report? • McLaughlin: Decision to be made tomorrow. Could schedule Board’s discussion of this policy after At-Large Membership, later tomorrow. Or decide later. Perhaps little practical difference. D. Uniform Dispute Resolution Procedure (Touton) 1. 248 proceedings commenced. More activity than anticipated, but going smoothly. Increased activity in part due to NSI’s involvement. 2. 3 providers, each with a significant share of the existing proceedings. 3. Time-frame for proceedings is less than sixty days. 4. Some decisions going each way. 5. Questions? • Cabell (reading a question from Post and Froomkin): Guidelines for determining whether providers are being fair and equal? • Touton: Have set some informal guidelines. Providers don’t decide the cases, rather just assign cases to panels. Monitoring is both under approval standards and on a case-by-case basis. One complaint so far of improper handling of a case. Providers’ task is largely ministerial. IV. Budget (Roberts) A. Still recruiting a business and finance manager. B. Budget on the order of $5 million per year. C. Happy to discuss subject in greater detail during public comment period. D. Budget posted online. Public comment welcomed. E. In the future, CEO to provide a proposed budget at this point in the year each year. Six to ten weeks of comment, then adoption of budget by May or June of each year for the year beginning on July 1. F. Priorities document presented 1. Two classes of priorities • General/continuing priorities: staff support, operational commitments, education/outreach, general management and administration • Specific: gTLD registries, ccTLD delegation and administration, At-Large Membership, etc. G. Budget schedule presented 1. Approximately $5.2 million of total income, $3.9 million of expense. Surplus to pay off a portion of the loss/debt from prior year. Forecast net reserve balance at end of year of $51,000. 2. Predict operating reserve balance at end of June 2001 of ~$1 million. Consistent with Board’s prior expression of desire to accumulate reserves of ultimately about a year’s operating expenses. H. Issues document presented 1. Mission of the organization reviewed 2. Priorities appropriate? 3. Should there be revenue raised to support some or all of SOs' expenses? 4. Root servers – continue volunteer system, or should ICANN pay for part or all of operating costs? 5. Public meetings are excessively expenses? Seeking public comments. Should there be an admission charge to meetings? 6. Questions: • Dyson: Search committee said there might be additional costs for the CEO position. • Cerf: Possible relocation costs for CEO, because having CEO near staff is thought quite beneficial. Also, expect direct compensation of $250,000 - $300,000. • Crew: To what extent should ICANN support activities of At-Large Membership and Council? MAC recommended that Membership should be self-supporting in long-term, but that ICANN could fund startup. • Dyson: How much? • Crew: Estimates of costs? We’re talking about real money here. • Love: Opposed to the idea of membership fees because ICANN is going to make public policy decisions. Membership has a high fixed cost and low marginal cost. So should charge members relatively little, and keep much (all?) of cost in the general budget of the organization. • Cerf: IETF has attendance fees, intended only to cover meeting costs plus administrative staff. Were initially nervous about charging anything, but we realized that costs of attending were primarily for travel and not admission. (So we became less concerned about charging a small admission fee.) • Love: Concern here is about membership fees, not meeting admission fees. • Roberts: The money required to run ICANN is not so much as to be overly burdensome. But the question of equity is tricky. Love argues that At-Large Membership should be subsidized by everyone else. Others disagree. • Remote comment from Pettigrew (#748) read in full. “How to assure no unfair representation of commercial interests?” • Dyson: It isn’t so. • Cohen: I’ve never donated anything, and I’m involved. • Shapiro: Markle and Ford Foundation are operating an ICANN travel fund. Will pay travel expenses of non-commercial representatives from around the world. See [http://Salzburgseminar.org] for sponsorship information. • McLaughlin: Also working on travel sponsorships for Yokohama. • Jennings: Reading from ccTLD Constituency meeting statement: “…discussed preparation of agreed budget for ICANN … general willingness among ccTLD managers to participate in budget process and contribute to funding of ICANN. … nominate a delegation to participate in the budget process … one delegate from each of five geographic regions – Black, Maruyama, Semich, Robles, Salvatera … reaffirm commitment to an ICANN built with bottom-up consultation …” Emphasize that this is from meeting, reflecting only fifty ccTLD managers, not the entire ccTLD Constituency. Are prepared to fund this year and next year, but can’t make commitments about level or terms. It’s possible that ccTLD constituency could provide up to $1.5 million as discussed. • Roberts: Encouraged and look forward to working together. • de Blanc: Interested in a contract for root server services. • Roberts: Will want to talk about that. • Duran: Want ICANN to put staffing priority on compliance with existing ICANN license conditions. Some violations already: Distributed WHOIS has inadequate disclosure of registrant data. Transfer of registrars – problems similar to telecommunications industry of involuntary transfers (“slamming”). Staff positions (chief technical officer, etc.) need to be filled. But also need specific mention of and emphasis on compliance. • Feld: Thanks for more consultative budget process – an important first step. Urge that the Board go further in important ways – making more detailed financial information available to allow input on cost savings for ICANN via volunteer efforts, increased funding availability from outside sources. Also fosters sense of openness and accountability. • Roberts: Task Force on Funding report has much more detail. An external CPA prepared financial statements which were posted on the web. Also publish unaudited results each quarter. All listed under Financial Reports on web site. • Staub: The amount of money discussed here is dwarfed by the amount of activity in the field. It seems weird to worry about budgets in the millions when mergers take place in the billions. Concerned about contracts for TLD servers. Contracts should be for functions, not to particular companies. • Roberts: ICANN currently has one registry contract – with NSI from November (posted on the web). • Dyson: Would like to hear from SOs. What are their issues, if any? What are they doing for their own funding? • McLaughlin: Constituent organizations of PSO will provide funding for secretariat. Little expense because most work done online. • Jennings: Funding of the DNSO is difficult. The ccTLD constituency is hesitant to fund multiple layers of work - regional groups, constituency, DNSO, ICANN, etc. It’s complex; we’d rather pay a single bill and have particular portions of that bill earmarked for certain expenses. • Kirk: Not all constituencies of DNSO are paying their shares of DNSO startup costs. Concerns about equity. • Roberts: We’re also concerned about equity. Welcome recommendations. V. At-Large Membership (Roberts) A. Reporting on behalf of ICANN Membership project manager. B. Status: Site, hardware, software, implementation; opened to public on February 23. About 6000 applications received, passing 5000 last Friday. C. Recommendations of Membership Advisory Committee have been followed. 1. MAC took comments worldwide. 2. Decided membership criteria should be as low as possible, primarily intended to guard against fraud. • Anyone anywhere in the world, 16 years or older, with a functional email address and a postal mail address to receive hard-copy information. 3. After registering, applicants receive an email with a membership number and password. Then ICANN mails a PIN which must be used in the validation sequence. • Prevents much, if not all, fraud. 4. Preliminary statistics – unaudited, not published, not in archive. But will provide such statistics after review of data for fraud. • About 60% North American, 20% European. Aspire to a balanced international membership. Will have outreach efforts to reach non-US population. But note that these numbers are consistent with data about Internet users. • Concerned about low women turnout – about 3%. Perhaps not unexpected. • Age distribution – about half of applicants are 20 to 40. Hardly anyone above 60. • Occupation – 20% students plus teachers seems good. 25% from Internet business. • 60% hold a domain name. 5. Haven’t yet begun to send PINs. D. Outstanding questions of election system, process of running for office. E. Dyson: How many signed up for At-Large Membership? Maybe two thirds. How many Africans? Perhaps fifteen. F. Reports from those who have studied membership: 1. Harshbarger (Common Cause) • Presenting results of study by CC and CDT. • Who wrote the report: CC is a US non-profit that stands for open and accountable governments and fair elections. CDT leads on issues of free speech and democratic values on the Internet. Also Carter Center. • Conducted an independent review of the proposed process and make recommendations. • Report highlights concerns expressed by many different stakeholders. 2. Berman (Center for Democracy and Technology) • This election represents ICANN’s efforts to be fully open to the public. No matter how the elections go forward, we make recommendations about clarifying mission, doing reporting, operating nominating committee. • Must tell people that ICANN is not a world government, rather that its mission is technical management. • Board proposes indirect election. But the members of the At-Large Council are not accountable as they should be. • Fear of capture – addressed by the presence of nine members of Board who are chosen by SOs. G. Abril i Abril: Surprised that report comes so late. H. Kraaijenbrink: ICANN Board invited input and comment from entire community and did not issue any specific invitation to CC or CDT. I. Wilkinson (GAC): Presents GAC Communiqué. Reviewed the CC/CDT report. Place a higher priority on fairness than on a particular schedule. J. Hotta: Statement from ISPCP Constituency: “support, in principle, the concept of representation of the At-Large community. However, we continue to have major concerns with the existing proposal… the timing of the election, and other issues surrounding the election process. The current structure … has yet to fulfill its goals. … lack stability as working procedures still being developed … not considered appropriate, pragmatic, or a good step at this time. … We think the number of At-Large Membership positions should be reconsidered. More important to achieve the correct process than particular dates or deadlines. Consideration should be given to the possibility of electing a small initial membership. … Outreach can also be improved, and it’s now apparent that some countries are inhibited from participating fully due to language, technical, and cultural considerations.” K. Cohen: Interested by Hotta’s statement. Personally have some serious concerns about whether nine At-Large Directors are in the best interest of the corporation or the community. Consider that the Membership includes sixteen-year-olds. Possibility of nine experienced directors leaving at once would be difficult especially since ICANN is not fully staffed. Propose a change to the schedule to reduce risks. Perhaps start with fewer new At-Large Directors initially. L. Dyson: Cohen, you say to elect five by September and see if we need more after that? M. Cerf: I’m 56 and glad I’m not 17. The outcome of this process is determined by the quality of nominations. So we must make sure nominations are good. Second, must assure that integrity of elections is clear. N. Online comment read from Brenden Tamilio (#749): How will ICANN get more Internet users interested? Constituency seems apathetic. O. Online comment read from Ariel Benjamin (#751): Most Internet users don’t know anything about ICAN. What to do about that? P. Dyson: At-Large Membership to widen the process. Q. Katoh: Comment as an At-Large Member. As a non-native English speaker, concerned that too little material is translated. Communities would be willing to help. R. Dyson: At-Large Coordinator is working on coordinating translation efforts. S. Cade: Am one of the 4% of women and will work on raising that number. Business Constituency supports ICANN’s At-Large Membership, but advises taking care to avoid vulnerability. Pledge to help work continue on schedule. T. Love: Should be sure not to move forward too fast. Shouldn’t need such huge efforts to bring about change. Direct elections far preferable. U. Costello: Need to set a timeline appropriate for the task at hand, not try to meet an arbitrary date. Direct elections are preferable generally. V. Young: Goals of At-Large Membership are very important. Assistance of outside experts is helpful. Don’t rush to meet an arbitrary date. W. Amar: Appreciate the opportunity to allow open membership, but current implementation unduly favors the US. English barrier is of great concern. Will attempt to get more African members, but need help and more time. X. Steele: Need more public outreach. Direct elections are essential for credibility. Need to better define what it means to be an At-Large Member. Y. Feld: Community was initially told that individuals would have their say, even when initial Board was selected, Individual DNSO Constituency was not created. Need general membership so that individuals have their fair say. OK to have fewer new Directors initially to maintain continuity, but need to make sure the process moves forward. Z. Aizu: The Membership Implementation Task Force didn’t use a sufficiently transparent process. AA. Holmes: Involvement of At-Large Membership is essential for ICANN’s stability, but so is stability. Adding too many new Directors too fast is of great concern. Add at most three new Directors now. BB. Davidson: Report tries to make concrete suggestions. Question should be what is needed to do the job right, but we think our recommendations are largely consistent with the timeline. CC. Kornfeld: Need to have a fair, representative, and effective process. Need direct elections. Finally, need more materials in other languages. DD. Cerf: Registration figures reflect Internet users – we may even have disproportionately more Africans than in the true Internet population. EE. Dyson: At this point, we don’t seek to represent the world community but rather the Internet community. FF. Holitscher (#754): Why didn’t CDT/CC reports consider comments from those outside the US? GG. Teernstra (#755): How much input will new At-Large Directors have in policy? HH. Sernocky (#756): How to register to be a candidate? II. Weinberg JJ. Montjoy: Concerned that half the Board is to be elected at once. Many of the organizations affiliated with ICANN are young, so there are few successful models to follow. Should thoughtfully take the time to get this process right. KK. Kleinman: CC, CDT, and Carter Center expressed the concerns of a number of us. Should work with DNSO WG-E on outreach. Direct elections will yield more enthusiasm. LL. Jennings: Users of airplanes shouldn’t have a vote on what happens in airplanes. That model is flawed. We’re wrong to thing the Internet is “so important” that we must somehow create a global democracy to run it. Put this back for a while, and ask existing democratic structures to do their job. MM. Maruyama: Please use simple, easy English and speak slowly. It’s much easier to translate documents that are written in simpler language. Follow level of English used by US Presidential speeches. The language of the GAC’s communiqué is not appreciated. NN. Gaetano: Don’t fight for a deadline if we can do a much better job with a little more time. Better not to elect all nine Board Members at once. At least some of those nine should be elected directly. OO. YJ Park: Persuading people to join ICANN is difficult because there is very little benefit to being a member of ICANN. We must clarify why we have this structure and why this is going on. Clarify the connection between Working Group E and ICANN. PP. Jamie Ho: Urging ICANN to have a fair election. Process to ensure one member/one vote. We have translated ICANN documents into Chinese. We would like to know whether there is a process for that. Response by Andrew McLaughlin: We are not good at translation now, but we are looking for ideas and help. QQ. Raj Kumar: I am the only one in India who knows about ICANN. Raise public awareness globally. RR. Wolfgang Klein…: Legal issues b/c ICANN incorporated under California law. On language issues, we are having international seminars. It can be done. SS. Keith Davidson: Would the elected directors make worse decisions than the current members. TT. : Why not wait 6 months. UU. Jay Bregman: Board concerned about derivative suits, so adopted indirect elections. Have alternative approaches been considered? VV. Vany Martinez: Must guarantee that all members receive the ballots. Ballots should be translated. WW. Pierre D..: The elections should not happen at the expense of Africa. Language issue: we are trying to translate. Is there something to assist with this. Most people in Africa are using email, not surfing web. There is a problem with bandwith. Election procedure: How is the regional representation going to be done. XX. Stephano Trumpy: Important for Internet governance. In a few months 10,000 at-large members. Users concerned about being asked to pay money. Adjust the major worries: language and outreach. In a few months before elections we can address representation. YY. Sigfried Langebach: Concern that geographic representation is important because decision makers influence decisions. ZZ. Christian …: Urges board to delay the elections and to define the difference b/w the DNSO and the At-Large Membership. AAA. Mark McFadden: Concerns with stability, timing, and structure of At-Large community. Concern that this is moving too quickly. September 30th is not a magic date. BBB. Theresa Swinehart: Option of a split-voting process. It would be worth exploring. VI. Board Comments A. Amadeu Abril i Abril: Duty to find a good, workable solution to find a replacement for directors who will leave at end of September. The new directors need to be legitimate. The deadline is an important issue. The CDT/Common Cause report is too U.S.-centric. There must be someone supporting the current ICANN process. Indirect elections are fair. All kinds of election can be fair or unfair. It will always be difficult to overcome people giving a lot of false information about ICANN. We should replace the board members. B. Vint Cerf: Unease at the mechanics of this process and lack of clarity that the process will put good quality members on the board of ICANN. This is not a global governance discussion, but ICANN there to make the Internet work for now. C. Greg Crew: ICANN’s mission narrow and technical. ICANN looks to SOs for advice. User views must be taken into account through at-large and public comment. Work of MAC expected that election would be direct. Potential for disruption because of legal ramifications of considerable concern to the board. Those concerns may be minimal in the future. We have not considered alternative approaches and will not at this time. We need to test the process. Quality people will end up on the board. Position makes the person. Need to have a body advocating the interests of the At-Large, so an At-Large council is still needed. D. Hans Kraaijenbrink: Mission of ICANN is the technical coordination of certain essential parameters for the Internet names and addresses, nothing more, nothing less. Anyone who says it is more is confusing the Internet community. Election processes are proper, we should not go to the public. We want people who are concerned about the Internet, those who are informed, to have a voice. We have been working on this with 300 people from all over the world and have posted on the website. The new report is bringing us back to square one. If the Internet community fails on this issue, the only answer will be that it will become a government organization. E. Esther Dyson: If we were to follow your recommendations, when would those new directors be available? F. Scott Harshbarger: You could have an election in September. Staggering is probably preferable. We took as givens the nine members and the time frame. Hoping to help move it forward in that time frame and with these principles. Would like to help work it through with some legitimacy. We talked to a lot of people with a lot of points of view. We are talking about direct elections. G. Jerry Berman: I think there is a possibility of having part of a staggered election in September. We need to have a consensus on what makes it legitimate when done then. Language, translation. We were asked to come in by the Markle Foundation to set up the ballot box. We talked to a lot of people. We were reporting what we heard in this room about the way that this election is structured. H. Robert Blokzijl: You have never contacted the ASO I. Alan Davidson: We did a conference call with the Address Council. J. Jerry Berman: The report does not claim to be scientific or exhaustive. K. Amadeu Abril i Abril: The meaning of dissidents is not non-commercial organization. Part of the concern is about the numbers of the people on the board? L. Ken Fockler: Assuming desire for September 30th action in the result and assuming staggering and work being done, how long before Sept. 30th do we need to announce that we are having an election? Is it two? M. Jerry Berman: Yes. The first recommendation of our report is to carve in stone the narrow technical mission of ICANN. N. Mike Roberts: Since this is a US public interest discussion we have imported the US system of direct elections into this discussion. US has an elaborate system of checks and balances to deal with direct elections. The assertions of the unassailable value of direct elections have gone too far. O. Jerry Berman: We did not say that there must be direct elections. P. Hans Kraaijenbrink: The way the council is designed with 18 regionally diverse members, I fail to see how that would be prone to capture more than your proposals. Q. Jerry Berman: Defining the word capture. Unless the Board gives more guidance of what the At-Large should consist of the Board is vulnerable. R. Hans Kraaijenbrink: Capture means one group gaining control. Regional diversity helps ensure against that. S. Esther Dyson: I have U.S. background of political correctness. I am concerned about capture by the people who don’t know what they are doing. People who are stupid individually. Concerned about the quality of the next nine board members. I am not sure about the real difference between direct and indirect. I favor indirect is because I like the idea of an At-Large Council with responsibilities other than just election, such as outreach, representing the community. We need more outreach to ensure quality directors. Spend time educating people and also making it move forward quickly. Electing 5 quickly and then thinking about what to do next. As with gTLDs, we face tough decisions. We hope Common Cause and CDT are going to help us with these. T. Jonathan Cohen: I recommend considering board appointing a nominating committee of At-Large members to then look for acceptable candidates. Or some other method for finding candidates that are acceptable. We set an election date. Period of evaluation of the term of those directors. Specific study on the question of At-Large and the board. Outreach during the one or two years. Specific requirement of the Board to reconsider and reevaluate. U. Esther Dyson: If there is a nominating committee then there should also be a way for those not on the committee to nominate. Encourage specific suggestions and responses. V. Costello: No such thing as a neutral election system. Need to consider structures to build legitimacy – direct elections therefore far preferable. Staggered process perhaps makes sense. But July-September timetable perhaps too tight. Consider adjusting process after first round. Use nominating process to assure quality – whether an independent body or a part of the Board. Consider proportional representation systems. W. Dyson: We assume existence of slates, campaigns, proposed policies and programs, etc. X. Johnson: Not present. Y. McLaughlin: Staff posted a document on election issues. Comments still welcomed, even tonight or tomorrow. [http://www.icann.org/cairo2000/atlarge-topic.htm] Z. Dyson: See a triangle. 1. Made a decision, go forward with nine directors elected as soon as possible, probably in two stages. Kraaijenbrink. Variation: Work more with CDT, Common Cause, etc. 2. Go ahead with fewer directors (either five now only, or five now and four later). Outstanding questions of geographic representation. 3. Direct elections rather than indirect. Or formal slates. AA. McLaughlin: Membership Implementation Task Force now to be launched. Document displayed. 1. Multiple phases – outreach now, election processes later. 2. Outreach MITF groups based on geography. Groups intended to be small for more effective communications. 3. Tasks: Research re mailing lists, conferences, other ways to distribute information about ICANN. Translation and other direct outreach efforts. 4. Note places which lack volunteers: New Zealand, China, France. Suggestions for recruitment welcomed. 5. Second wave is upcoming. 6. Lunch with MITF volunteers tomorrow after Board Meeting. VII. Study Session on New Top-Level Domains and Famous Name Issues A. Touton: Two types of TLDs, 243 two-letter domains (country code top-level domains, from ISO 3166-1 list), and 7 three-letter domains (global TLDs, including three with open registrations). 1. Postel proposed 150 new TLDs. Much controversy over the years over what kind, how many, for what purposes. 2. WIPO report suggested that if certain requirements were met to protect intellectual property owners, it would be appropriate to introduce new gTLDs in a controlled manner. ICANN Board referred that portion of the report and recommendations to DNSO. 3. DNSO created Working Group B (famous names) and C (new gTLDs generally). Some progress made on the issues, but no consensus reached on all issues. 4. Study session to educate Board and community. B. Weinberg (WG-C): Document presented 1. 140 nominal members. But about half haven’t participated at all. 2. Participants from all constituencies except perhaps gTLDs (NSI). 3. Agreed last summer that there ought to be new gTLDs. Closest to dissent was some people who wanted additional trademark protection first. 4. Second consensus point (passed 44-20 – rough consensus in that it’s more than 2/3) was that ICANN should roll out six to ten new gTLDs followed by an evaluation period. • Alternatives: Slower deployment, or faster more certain deployment. 5. Presented these consensus items to NC yesterday. NC asked for a report within ten days. 6. Ongoing work items: • What process for selecting gTLD registries? Choices: ICANN selects gTLD strings and calls for applications from (potential) registries to operate those TLDs. ICANN selects registries based on objective criteria and allows them to choose their own gTLDs. Registries apply with a description of the proposed gTLD, and ICANN chooses based on both operational credentials and its proposed gTLD. Currently a consensus call on C. • Cerf: Philosophical principles by which gTLD strings to be chosen? • Question of how the namespace “should” be? Personal sense is that there should be both open and general-purpose TLDs in the namespace. Terminology like “honesty,” “differentiation,” “semantics” for analysis here. • Must gTLDs be chartered? If so, should charters impose restrictions? Require meaningful differentiation between gTLDs (for efficiency, to reduce confusion)? Or leave open the possibility of different registries competing for the same market (to reduce possibility of monopoly power)? • Questions for potential registries: Solvency and technical competence? Require non-profit? Or want a mixture of profit and non-profit? C. Palage (WG-B): Presentation delivered 1. Position papers received – summary on table in presentation. 2. Review of legal principles of famous marks. 3. Potential dangers. 4. Wong: Famous marks in other languages? • Palage: No discussion. 5. Touton: Prospect for consensus within WG? • Palage: Am much more optimistic now than I was before these meetings. 6. Touton: Relationship with WG-C and new gTLDs? • Palage: Without adequate trademark protection, there can’t be new TLDs. D. Dyson: Board wants to hear all this, also to discuss, and make recommendations as appropriate. E. Kleinman: Want to assure that non-commercial interests are not slighted. Is it an extension of trademark law to exclude certain words from all gTLDs? 1. Cite to US law (Title 15, Section 1125, Subsection c.4): “The following shall not be actionable under this section: … Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the famous mark. [or] Noncommercial use of a mark.” Also, generics are not subject to trademark. 2. Question is how to help people find Coke as a beverage and coke as a power supply. Need differentiated gTLDs. Principles of certainty, honesty, and differentiation. F. Wong: ICANN is not in the business of deciding what is and isn’t a country. In Japan there is a famous mark list. How about producing such a list for the US? 1. Beresford (US Patent and Trademark Office): Met twice a week for four years to discuss standards for selecting standards for a well-known mark. Forwarded our standards to WIPO which approved them for member states. • Cerf: Well-known marks across all possible classes of trademark? • Beresford: Yes. G. Dyson: One minute per commenter, coffee break in parallel. H. Stubbs: Feel frustrated. Want to take action, but not sure what to do. Consensus is that we need gTLDs; problem is that we try to get too specific and then can’t agree on details. Let’s try some to get started. I. Lewis: Draft report from co-chair of WG-C does not correctly represent the sense of the group. Very serious problem. J. Swinehart: Lewis’s comments don’t represent the entire business constituency. K. Love: Don’t think it’s ICANN’s job to do trademark protection. Non-commercial group will have a study group to consider these issues. L. Kirk: Are cautiously optimistic about finding a way to protect well-known marks. M. Chicoine: Question isn’t if we should add new gTLDs but under what conditions. Need to make sure we have full and accurate contact data, compliance systems, dispute resolution policy, etc. N. Deutch: Problems with WHOIS database make it hard to add new gTLDs. Different WHOIS databases have different search capabilities; NSI’s WHOIS needs improvement (doesn’t allow all kinds of searches, stops at fifty hits). Doesn’t allow any Boolean logic. O. Schwimmer: .TV needs famous mark protection. US famous mark protection began in the 1890s with a Paris treaty. Good examples are “Blue Cross Blue Shield,” not “blue.” List-based approach could be helpful. P. Tatham: Only criterion for getting included on famous mark list in Japan was paying money. Need to establish a list that doesn’t exist at the moment. Q. Protection of famous marks is not a US system, rather an international system. R. Feld: Believe WG-C report was accurate. Urge Board to adopt WG-C recommendations and move forward by Yokohoma. Don’t view .ORG as definitive; we can learn from other non-commercial domains like .EDU. S. Menge: Have learned recently that Palage’s position paper is most beneficial to small businesses. A testbed is appropriate for adding new gTLDs. T. Echeberria: Most famous marks are from outside Latin America. U. Cade: WG-C report does not fully reflect the business constituency. In policing marks, many infringements include use of famous mark to draw consumers to sites with piracy, pornography, etc. Introduction of one new gTLD will be a significant step forward. V. Kornfeld: Famous marks lists are too broad. W. Latin American concern: Most trademarks come from outside the region, and we use a different language requiring different legislation. In Latin America, well-known and notorious trademarks are different concepts. Can’t do all analysis based on US law because ICANN is a global organization. X. Yabe: Would like to correct mischaracterization of Japanese famous mark list. It’s just a result of Japanese patent office’s research, helping WIPO. It’s not part of Japanese law. Y. Gaetano: Initially thought the problem was the introduction of new gTLDs and the difficulty was defining which to add. But the process has since gotten more and more complicated. Shouldn’t delay further. Inaction is a policy decision too. Z. Kane: A universal WHOIS is coming soon. Registrars recognize the need for a universal WHOIS to build consumer confidence and trust. 1. Sits on top of existing WHOIS server. Can’t support Boolean searches or large searches when not supported by underlying systems. AA. Shuckman: Working Group process has been difficult. But incredible progress made. It’s incredible that registrars and IPC are now in agreement. It’s good to see this moving towards closure. BB. Heltzer: Don’t think of this as big guy versus little guy. Are attempting to prevent problems before they occur. CC. Cosgrave: ICANN should enable market growth and competition by adding new gTLDs. Even a single new gTLD would substantially support competition. DD. Thrush: Question of new gTLDs is squarely within the Board’s power. Difficulty is that there isn’t currently an outside list of famous marks. EE. Park: ICANN board should move forwards as quickly as possible. Should be sure to make new gTLDs for non-commercial use. FF. Jennings: Names Council considered these issues yesterday, asked WGs to finalize their reports. VIII. Dyson: Ready to ask staff for proposals? For variations answering these questions? Would like to hear the Board discuss somewhat more? Do you want us to move forward so that in Yokohoma we can say no? (Maybe half raise hands.) Or wait until later to do anything? (Few hands.) Seems to be a sense of urgency. Comments from the Board? A. Cohen: Some see a sense of urgency, others not. Differences of opinion remain. We need specific options. B. Dyson: Need to avoid creating “mini-NSI’s.” Must be careful how we move forward. C. Kraaijenbrink: Should discuss with staff and counsel, then act via teleconference. D. Cerf: Would like to hear scenarios. Will everyone with a .COM want the corresponding SLD in the new TLD? New TLDs could cause confusion – consider whitehouse.com versus .gov problem. 1. Dyson: Scenarios should include possible results of different means of assigning registries. One year, in perpetuity, etc.? 2. Roberts: Need to take seriously the possibility of a registry going out of business. • Dyson: Escrow provisions? 3. Fockler: May need an iterative process with SOs and/or public. E. Abril i Abril: Have heard these arguments before. Most important in the long run is to preserve stability of the Internet. IX. ccTLD and Administration Policies: Touton A. Formation of relationships with ccTLD operators throughout the world. B. http://www.icann.org/cairo2000/ccTLD-topic.htm C. Major issues: 1. Delegation issues – when to redelegate, how to choose? 2. Allocation of policy responsibility. 3. Relationship between IANA and ccTLD administrators. 4. Funding by ccTLD managers of a portion of ICANN’s expenses. D. Proposals posted from Twomey, CENTR, IPC, Quaynor/Van Couvering/DeBlanc/Robles/Semich E. Presentation from Twomey F. Presentation from CENTR on Best Practices for ccTLD Managers (Jennings) 1. See documents posted online at http://www.icann.org/cairo2000/centr-cctldbestpractices-24feb00.htm 2. See ccTLD constituency statement G. Alternative Best Practices Document (Semich presenting; Quaynor, Van Couvering, DeBlanc, Robles). Report: All working together to make sure that there’s a single final proposal. H. Intellectual Property Constituency (Heltzer) 1. Most activity in ccTLD sites raises no concerns from IP perspective. But unacceptable practices such as piracy and infringement of IP rights are becoming more prevalent. Importance of uniformity and of compliance with best practices. Want to preserve local control and accommodate varying national laws. I. McLaughlin (Presenting for Klensin): http://search.ietf.org/internet-drafts/draft-klensin-1591-reflections-00.txt 1. Read out loud: “The issues 1591 attempted to address … have not changed significantly in principle. … It may be useful to try to reconstruct 1591’s principles and think about their applicability today as a model that can continue to be applied: not because it is historic, but because many of its elements are proven to work reasonably well, even in difficult situations.” 2. Review of various kinds of ccTLDs – “generic,” etc. 3. Role of governments (section 5) – “never get involved in determining which entities were countries and which ones were not … in determining who was or was not the legitimate government of a country … never become involved in in-country disputes.” J. Questions? 1. Touton: Board proceeds under ICP-1; these proposals differ in various ways. For a communication-based regime, ICANN would need to determine what kinds of relationships it should have with ccTLD operators and then attempt to form contracts for such relationships. To proceed this way would require a list of basic principles. • Dyson: Three kinds of contracts for the three kinds of ccTLDs per Klensin’s analysis? • Touton: Seek to have a standard contract with some modifications. 2. Cerf: Typo in section 2 (“Implications of the Categories”). Means “presents several opportunities” rather than “prevents” in the second half of the first sentence. • Touton: Some of these judgments are best turned over to governments. 3. Capdeboscq: Should we have contracts with governments also, in addition to with ccTLDs? • Dyson: Have tried to avoid contracts with governments directly. • Cerf: Communication with governments via GAC. 4. Jennings: ccTLDs would welcome a decision by Board to empower staff to move towards contracts. Understand the short timetable. Relationship between ccTLDs and governments. But communication should be primarily between ICANN and ccTLDs, not governments. 5. Poblete: ccTLD Constituency’s goal is to prepare a single proposal by Yokohoma. Don’t take the broad statements made today as certainties; they’re far from obvious to many of us. Worry that the GAC document nationalizes activities not currently controlled by governments. Governments can do what they want to do in the end, but ICANN need not make that task easier for governments. • Twomey: The wording of the document might sound hard, but we mean it when we say we don’t anticipate many redelegations. RFC1591 spoke of local communities, and we aren’t moving away from that. 6. Blokzijl: Governments could still assert their authority. 7. Kraaijenbrink: GAC might consider translating its document into major languages so that it would be easier to understand. • Dyson: How about “non-legal”? 8. Roberts: Governments are obliged to act in the public interest. 9. Van Couvering: Would rather see a system that makes ICANN a “hub.” Concerned that some ccTLDs will be run the way some national telecom companies are run. 10. Cohen: What if I (as a Board Member) see what I think is an improper redelegation? • Twomey: There are limits on ICANN’s powers. Determining whether a government is acting properly or improperly is not an ICANN power. Second, when a government wants to redelegate, ICANN’s failure to do so could put someone at grave risk. • Dyson: There might be ways to register protests other than officially as a Board Member. 11. Jennings: Will look into paragraph 5.1. Re the possibility of improper redelegation, there will later be another redelegation. Murderous governments “pass” in the long run. 12. Cerf: Seems like we must draw governments into the picture rather than exclude them. Trying to avoid their involvement seems shortsighted. 13. Porteneuve: IANA decisions previously made by Postel, doing his best but from an American perspective. Today, IANA functions still run by Americans. Should be more international. 14. Thrush: Complex question. No intention by ccTLD administrators to keep governments out. But the exciting thing about ICANN is the concept of industry-led self-regulation. 15. Salvatera: Concerned about GAC document. Suggests that they don’t understand Africa. Sometimes in Africa there’s no government. 16. Feld: Concerned about domain name space once sovereignty concerns are introduced. Should talk to legal experts (beyond those of the GAC). What you’re doing here could have unanticipated effects beyond ccTLD space. • Kraaijenbrink: Governments rule the world in a democratic society. ICANN will control technical standards, nothing more. 17. Burr: Importance of this issue for transition of DNS management. Currently, USG must approve every change to root name server because of concerns about liability should a delegation be contested. So USG is involved not because this is an inherently governmental function or because it’s always been that way, but because that’s the only way to move forward. However, would ultimately like ICANN to be independent. Have heard it said that the GAC is an intrusion of sovereignty on the Internet, but we don’t think of it that way. Contracts between ccTLDs and ICANN should provide additional security and predictability. 18. Aizu: Wanted to invite government people to the discussion, but American opposed the idea. Different countries vary dramatically in their degree of government technical expertise and of Internet connectivity. X. General Q&A A. Love: Discussion at lunch was helpful. Morning discussion said “this is purely technical” while afternoon is clearly non-technical. Perhaps need a WG to clarify mission. 1. Dyson: Bylaws say we don’t do that. See, for example, [http://www.icann.org/nsi/nsi-registry-agreement-04nov99.htm] section 3.a.ii.b. 2. Wong: We’re not in the business of defining what is and isn’t a country nor what is or isn’t a famous mark. B. Feld: There have been questions about institutionalized procedures to promote openness. ICANN would benefit from institutionalized openness – access to specific books and accounts, etc. Good procedures make for good faith. C. Echeberria: Importance of face-to-face meetings will decrease going forward. Then it’s important that a meeting no longer be held every year in the US; that would leave too few meetings left to be held elsewhere. 1. Kraaijenbrink: Believe that moving around is important. 2. Abril i Abril: Los Angeles is Latin America! 3. Dyson: Expect that we will have more than two meetings a year for the foreseeable future. D. Abril i Abril: Electing nine board members creates strong incentives for fraud. Reduce that incentive by electing fewer board members. E. Fockler: RIPE had a good meeting to discuss convergence issues, and ARIN has upcoming meetings on numbering. F. Wong, Cohen, Dyson: We won’t draw up a famous names list. CONTACT INFORMATION For additional technical information, please contact: Ben Edelman and John Wilbanks |