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Scribe's Notes ICANN Board Meeting Open to Public Observation March 10, 2000 – Cairo, Egypt I. Introduction to Board Meeting (Dyson) – for the Board, for audience to watch but not interact with. Will try to be clear, but primary purpose is to talk amongst ourselves after having received comments yesterday and online. II. ccTLDs – McLaughlin: Read resolution on ccTLDs . “…President and staff are authorized to work with the ccTLD managers, GAC, and other interested parties.” Resolution provides maximum flexibility to staff in moving forward – asks staff to get parties working together. Can’t be more specific yet because we don’t know how this will progress. A. Abril i Abril: Doesn’t interfere with any group’s progress on specific issues, right? B. Touton: Doesn’t stop anyone from working together towards a satisfactory conclusion. C. Resolution passes unanimously. III. New gTLDs – Touton: Read resolution A. Requests that NC submits recommendations on famous trademarks and new gTLDs by April 20. asks staff to prepare draft implementation documents, commentary, and statements of issues by Yokohama. Intention to act by Yokohoma. B. Dyson: NC’s proposal needs to be submitted to other SOs. Need to see concrete models. Would like diversity of rules in new gTLDs. C. Kraaijenbrink: Modify first Resolved clause to put famous trademarks in a “taking into account” clause. D. Cohen: A list of globally famous marks could be up and running within thirty days. WIPO anticipated such a list, and I therefore suggest that we use one. 1. Touton: Ask WIPO to generate such a list? 2. Cohen: Right, because WIPO can’t make such a list on its own; it needs a request. What constitutes an internationally famous mark is well-understood. WG-B has already had a long time to consider these issues. E. Abril i Abril: Should send the issue to WG-B first? F. Fockler: Support Cohen and others. Intent of this resolution is to be supportive of NC, not to get in front of them. There are other ways to allow or encourage WIPO to do things. G. Roberts: Separate Cohen’s motion into a new motion. H. Kraaijenbrink: Feel comfortable with the resolution as it is. Asks NC for a recommendation on the issues. Re WIPO, ICANN can only recognize and support participants in WIPO. I. Dyson: If what Cohen says is true, WIPO can’t prepare such a list until we ask them to do it. We want to get this process moving – won’t want a delay in getting the list when (if) we ultimately want it. J. Cerf: Resolution is innocuous. Perhaps it would be sufficient for us to observe that having a list is helpful. 1. Cohen: There are moves afoot to ask WIPO to prepare such a list. But a request from this Board would likely be sufficient for them to do so. 2. Roberts: We’re debating a motion that’s not before us. K. Motion passes unanimously. IV. Roberts: Have this resolution worded in such a way that makes it clear that ICANN is not injecting itself into the world of trademarks. We look forward to the day when such a list is available… A. Cohen: In response to an offer by WIPO to prepare a list of internationally famous trademarks, which may or may not be useful to or acted upon by this Board, the Board, in response to concerns expressed by a large number of stakeholders has asked that WIPO proceed with preparing such a list on the clear understanding that this Board reserves the right to take or not take action with such a list. B. Cerf: Kraaijenbrink and I have similar ideas. “The Board urge WIPO to proceed…” Different from asking them, but expresses our real desire to see such a list created. C. Wilson: Must not confuse our constituencies about the nature of this organization’s responsibilities. D. Fockler: Support that idea, perhaps rephrasing it somewhat. Making an observation rather than urging. E. Dyson: If we’re going to do this, we should take responsibility for it as a Board, and not lay responsibility on the staff. F. Cohen: Would prefer the word “support.” G. Wilson: What does “support” mean? H. Touton suggests: “Whereas the World Intellectual Property Organization in its 4/30/99 report to ICANN has offered to prepare a list of globally famous trademarks, resolved that the Board notes that such a list would be helpful to its assessment of proper action on expansion of TLD space.” V. At-Large Membership: Sims A. First whereas clause if background. Notes resolutions previously adopted. Notes receipt of comments and divergence of views. B. Second whereas clause recognizes importance of stakeholder participation and of preventing any At-Large Membership from unilaterally controlling actions of the Board. C. Resolves that five Directors to be elected by direct ballot by November 1. Extend four existing At-Large Directors through the Annual Meeting in 2001. D. Establishes Nominating Committee to nominate five or more candidates for consideration by At-Large Membership for selection to ICANN Board. E. Establish a petition process for additional nominations from Membership based on certain minimum qualifying criteria. F. Initiate a study on the initial election, to consider public comment, and to recommend changes to the ICANN Board as needed. G. Suspend current provisions of Article II re selection of At-Large Directors. H. Summary: Provides for a relatively early election of new At-Large Directors, one from each region. Calls for retention of four initial Board Members to stay on the Board for one year. Calls for result of study to be implemented by next year so that entire process finished by 2002. I. Crew: Arrived at the position reached in LA after extensive consideration. To be confronted by a substantial change in the process at this stage has been difficult. The pressure for directly-elected At-Large Directors is not new, but there’s concern at the potentially-disruptive consequences based on the laws of California. In Santiago, decided the risks of such disruptions were too great, and we decided to use indirectly-elected Directors. Some aspects of this resolution have merit, in particular the Nominating Committee that makes sure candidates are suitable. Staff has done excellent work. Am prepared to support this motion. J. Cerf: If we do this, we’ll be down five Directors by September until five new Directors are appointed by this process. 1. Sims: No, because we intend to extend the terms of four At-Large Directors. 2. Cerf: No, because until we get five new Directors, we’d be down by five. 3. Roberts: Suggest a fix. 4. Cerf: Ask directors not to part until their replacements have been found. 5. Touton: Existing MoU with DoC would have to be extended for some period of time. It’s fine for the Board to ask Staff to do so. The Board could also, and perhaps should, have the terms of five current directors end only when new directors present to replace them. 6. Dyson: When initial Board seated, there was huge outcry. One of our initial principles was that we’d leave by September 30. Tone has changed now, and I think we’re responding now to current public demand to stick around. Re Nominating Committee, the issue has two sides: Do want high-quality directors, but also want direct elections. Nominating Committee plus petition is an interesting idea. Need to clarify intentions with nominating procedures. Also, concern about regionalizing every issue. K. Roberts: Staff has to provide specific steps to accomplish particular goals. L. Abril i Abril: Have failed so far to produce a perfect system. Nominating Committee plus petition can find all good candidates. But it’s still just a partial solution because we’re only initially choosing five Directors by At-Large election. Still have to decide on final four seats. Current state of affairs suffers from three problems: against extension of terms for initial directors; November is too big a changeover for new directors for to be ready to make such big decisions and current directors shouldn’t be a majority of those making the decision (remember how new members had to decide on NSI agreement); regional representation on Board should not depend on ICANN’s ability to get voters from region M. Cerf: Process has worked well for ISOC and other Internet bodies in past. Nominating committees can help to fill gaps and then still have deep slate. November issue is hard to resolve. 1. Abril i Abril: Can’t have this current Board as it now exists making the final decision on general membership • Cerf: If we had been able to solve the problem six months earlier, we would have been the Board to make the decision N. Cohen: The current Directors have finally earned credibility with the community and I think extending the terms is a good decision. Now is a time to fix in the drafting the problem of the November changeover; we could have a changeover period such that all Directors terms expire after the Annual General Meeting so that both old and new (having been elected earlier in fall) are present and acting at the meeting 1. McLaughlin: According to by-laws, there is supposed to be a change-over period – new Directors don’t vote in November but are expected to be present at the meeting 2. Cohen: Rather than do that, for purposes of certainty let’s have every Director know that his or her term will expire after the General Meeting. O. Abramatic: Sharing of ideas and discussion allows for smoother transition so I am more optimistic due to staggering effect. Resolution should include outline of what should be available in Yokohama; we need to have status markers to show us where we are in the process. Nominating procedures should be ready for approval by Yokohama. 1. Roberts: We’ll take that into account as we draft milestones. P. Kraaijenbrink: Legal counsel did excellent job. I am helped by other organizations’ positive experience with these procedures. However, discussion has not persuaded me. Drafting should reflect that we have observed, but not been persuaded. Q. Blokzijl: My experience with running international Internet organizations leads me to recognize these procedures and that they work. I am strongly in favor with underlying ideas and with implementation plans. R. Dyson: I don’t see rationale for having four Directors extended another year past extension to November. What Abril i Abril objects to is exactly what was foreseen: that outgoing people would craft a system for the incoming people. Also, partial terms will always happen. Finally, wealth of experience in election procedures, etc, that we are being offered by CDT and its partners seems to me to be useful and I hope we will continue to draw upon it. This is about not just electing new Directors but also about the entire social infrastructure going on around it. Let’s not simply lower risk of poor quality of Directors but let’s also increase the possibility of informed and active electorate by engaging in outreach and education. S. Wilson: I am relieved to see the direction in which we have been going but we must realize that we have been inventing new things in new territory. Let’s pause to appreciate the hard and excellent work of the staff. One missing piece has been sense that we were getting good handle on how to move forward in an international way, and so I favor the staff’s recommendation for more comprehensive study. Fiduciary responsibility of Board as a board must be focused on particular mission of our organization, not on ancillary or orthogonal agendas. Accountability and legitimacy will flow from this focus. Participation is key part of this. As we mature, transparency will be helpful because incoming Directors will know how we operated. Also, perhaps some orientation for Directors is called for. Non-voting presence at Annual Meeting could be helpful here. Nominating committee role will help ensure broad representation and balance and prevent capture. Transition from whatever we have now and whatever we have as result of study will be necessary and impossible to anticipate fully now. I can support this resolution. T. Fockler: I support this resolution. Direct elections, nominating committees, petitions, and other procedures are comfortable to me. International outside organizations should be called upon. U. Davidson: I can support most of the resolution. We all share objective of electing good Directors with appropriate checks and balances. Good compromise proposal. V. Capdeboscq: Our main goal as interim Directors was to be able to leave the room as quickly as possible so it is in some sense a failure that we will not be able to do so in September. However, we are taking a significant, positive step forward in crafting these procedures. I feel we must be careful with the Nominating Committee but if in the culture of existing Internet organizations, its aid could be very helpful. W. Murai: I support the resolution but the nomination process itself must be handled carefully. X. Crew: Echo congratulations to staff. Perhaps we should remove the restriction that original members of Board can’t stand for election for two years after initial terms ends because if any did it could help with continuity concerns. Hopefully by now it has become clear that Directors are not in this for personal gain. Y. Wong: I hope that original Directors don’t just go away when they leave the Board. My understanding right now is that we are going direct for elections. What is the implication for derivative liability lawsuits? 1. Roberts: Unfortunately, California law on this issue is sparse so difficult to give definitive legal answer. Members can be designated non-statutory, and therefore not able to bring derivative lawsuits. However, applications of this principle are lacking so not easy to know that a given judge might act otherwise. • Touton: Staff’s understanding is that it is Board’s intention to preserve corporation’s ability to have tailored membership specific to this organization rather than merely statutory types. Z. Kraaijenbrink: Let’s seek proposals from international organizations to do the study so we are not exclusive. AA. Dyson: I am concerned by the five region issue. The whole point of at-large membership is to generate diversity. We don’t want geographic capture but at the same time we don’t want to have only the majority from each region and never have a minority represented or outlying voice present. 1. Sims: Can’t productively determine this at this point 2. Abril i Abril: I will not support any resolution that does not guarantee a seat each for at least Africa and Latin America and possibly Asia Pacific. There is no clear minority party here because interests are fractured across issues. Your concern reflects US political culture only. 3. Dyson: Let’s take women as an example. I think women’s interests and men’s are identical in this realm, but I still see value in having women on this Board. Let’s not think that if we achieve geographic diversity we are finished with diversity. BB. Cerf: Our focus is on the quality of the Directors focused on ICANN’s directive, not on achieving global representation. Diversity matters but let’s not lose sight of our focus. What happens if a Board member resigns? 1. Touton: Art. V, s. 12. In general, if a Director resigns a new Director is selected by the same manner that the resigning Director was chosen. • Cerf: Power of appointment if not in appropriate place in election cycle? • Touton: Bylaws are ambiguous due to transition, but we can tailor it in appropriate way given direction by Board. • Wilson: We’re not out of initial Board member period until we know what study recommends because if we extend some terms we will still have some initial Board members • Roberts: We have the ability to revise the bylaws as the Board chooses for precisely the need to make alterations without too much legislative action 2. McLaughlin: We added one line in response to Kraaijenbrink’s comment so that we invite proposals from international groups and Abril i Abril has asked to change extension provision • Cohen: And to have terms end after Annual Meeting? • Roberts: Let’s make that if practicable? • McLaughlin: We are limited in extending PSO’s and ASO’s terms due to MOU with RIRs and others and trying to renegotiate those will be difficult. • Cohen: Perhaps we could at least ask them to consider whether it is possible without too much fuss CC. Dyson: What is the purpose of extending the terms of four members beyond the end of 2000? 1. Sims: Staff’s view. We have been reasonably successful in coming to grips with complicated issues. We think initial Board members have come to be seen as significant positive contributors to these results, albeit not essential to effective continuation of Board. We think keeping Board at 19 for period of study would allow us to maintain expertise and experience of initial Board members and not prejudice study outcome by replacing leaving Board members in such a way as to impact size of Board. If Board is to diminish in size, the four will simply not be replaced when they leave. Doesn’t create implications for outcome of study. 2. Wong: Is there any reason to believe any of the initial Board members want to stay on? 3. Roberts: Not to my knowledge but nominating committee will have to handle it. 4. Crew: If there aren’t four such, this will be void on its terms. If one or two, strange numbers but still the result of the individual decisions of individual Directors rather than Board action. If the Board does anything overt to alter the size, some will believe it has implications for study outcome. DD. Abril i Abril: I move to alter the resolution to remove the portion that extends the terms of four of the initial Directors until November of 2001. (See #2 of resolution) 1. McLaughlin: Effect would be that all 9 At-Large Directors would leave at the end of the Annual Meeting in November of this year and the Board’s size would thus go to 15. 2. Roberts: Not changing statutory size of Board (permissive). 3. Motion fails. EE. Blokzijl: Move for full resolution 1. Passes unanimously VI. Touton: Resolution on website regarding amendment to bylaws. Art. V, s. 2. Resolved to add sentence that allows SO Council to revise its designation of persons serving staggering terms by 2/3 vote. A. Motion passes (Wong abstains). VII. Roberts: Staff takes note of Dyson’s excellent leadership during long meeting yesterday A. Dyson: And I take note of hard work of staff overnight preparing documents. VIII. Break IX. Independent Review: McLaughlin A. Presentation Displayed and Read B. Passed unanimously X. CEO Search: Cerf A. Slides presented B. Blokzijl: An international search? 1. Cerf: Yes. Intend to conduct a worldwide search. Wording should reflect as much. C. Fockler: Wording to add that recommendation received to retain a search firm. D. Cerf: Can update requirements if appropriate. E. Wilson: Should not authorize the search firm to proceed until we have the Board’s authorization for core requirements. F. Wong: So we need to defer? G. Roberts: Have gone through several version of documents. Haven’t seen updates since Berlin. Should review what we’re asking search committee to find. H. Wong: Do this by first upcoming conference call. I. Cerf: Concerned about lengthy delay. J. Kraaijenbrink: Understand that part of initial phase will be rephrasing of core requirements. K. Cerf: Must-Have requirements: 1. Experience working with large, diverse board of directors, developing personal rapport with board and helping it work effectively. 2. International experience. 3. Understanding of issues behind ICANN’s charter and mission. 4. Advocate of new ideas. 5. Understand consensus on major ICANN issues and priorities. 6. Credibility with Internet communities. 7. Evident leadership skills. 8. Ability to generate enthusiasm. 9. Persistence, personal integrity to maintain consensus and stakeholder support. 10. Sense of priority, ability to distinguish signal from noise, and ability to get solutions quickly. 11. Resilience, patient, able to stop priorities from slipping. 12. Self-starting, but able to make good use of priorities of others. 13. Strong administrative discipline. 14. Should not be an empire-builder and should be a happy and frequent traveler. 15. Excellent references. 16. Also good: • Work outside of home country. • Management experience. • Enthusiasm for Internet and its potential. • Some role in Internet’s evolution. • Influence via personal network. • Experience with governmental entities. • Trusted name known by constituents. • Record of building consensus. • Comfort with himself or herself and ego, with bias towards action and accomplishment. L. Wilson: It would be great to find someone with all of that. But must sort by the must-haves because that list is very ambitious. Will ultimately be forced to make difficult decisions. 1. Cerf: Will have to balance each candidate’s strengths and weaknesses, weighing each in total. M. Fockler: Need to resolve that ICANN Board authorizes CEO to negotiate a contract with search firm. N. Passes unanimously. O. Abril i Abril: That description suggests that foreigners should give up. Description seems to contemplate only American citizens. Educational requirements don’t make sense for applicants from some countries. 1. McLaughlin: Would be happy to receive edits. XI. Audit Committee Charter A. Wilson: LA meeting resolved to form Audit Committee (http://www.icann.org/cairo2000/audit-comm-issue.htm). This page describes what committee will do. Accounting is handled by independent accountants. Audit Committee also considers the organization’s risks. Want fiduciary responsibility delegated to Committee. Committee members are Crew, Davidson, Wilson. B. Roberts: AC provides oversight of CEO. C. McLaughlin: Resolution presented: “…the Board adopts the proposed Audit Committee Carter, and directs that it be attached to these minutes as [an] attachment.” D. Passes unanimously. XII. IETF/ICANN Agreements re IANA A. Touton: ICANN needs to form relationships with standards organizations. Staff and counsel have been in discussion with IETF and IAB about formalization of relationship via Memorandum of Understanding. http://www.icann.org/general/ietf-icann-mou-01mar00.htm B. Resolution presented C. Passes unanimously XIII. Authorization of Checks A. Touton: To approve payment of outstanding invoices to Jones, Day, Reavis, and Pogue for $97860.44 and $455,674.69. B. Roberts: Note that these checks reflect half a year of legal services from Jones Day covering half a year of extensive legal services including two congressional hearings and extensive negotiations with USG and NSI. C. Cerf: Normal procedure for authorizing checks larger than a certain amount? 1. Roberts: Discussion with Board was clear. That we’re late in ratifying this reflects that cashflow was significantly influenced by Los Angeles agreements. We were significantly in arrears before LA, but the NSI payments allowed us to pay Jones Day before their fiscal year end. The size of the checks an the purpose for which they were drawn were known to the Board. D. Two abstentions (Cohen and Roberts). 1. Cohen: No question in my mind that services were excellent and price was fair. Abstain because we should have seen the account first. Should have a rule to see that expenses exceeding a certain amount are approved before payment. 2. Roberts: Note that if we had paid on time, each individual check would have been within my normal signature authority. E. Wong: Going forward, we expect that this won’t happen again. XIV. Yokohama: McLaughlin A. Next meetings will be in Yokohama, Japan. In November, set a date of the Saturday and Sunday preceding the INET conference. Scheduling peculiarities, including for constituencies. 1. Public Forum on Saturday, July 15; Board Meeting Sunday, July 16. 2. Normally have advisory groups and constituencies meeting the days before the main meeting. This time constituencies, DNSO, NC might meet afterwards. 3. Many rooms are available for free for SOs on Monday and Tuesday. Meetings on Thursday and Friday before are difficult because rooms are not available. 4. Cerf: Attempt to hold ICANN Meetings at end of INET didn’t work due to schedule conflicts for some directors? • McLaughlin: Right. 5. Will encourage DNSO and others to meet on Friday and on Monday and Tuesday if necessary. Want people to be able to go to these meetings and INET if they choose. 6. Note to Board: Need to arrive Tokyo on Thursday which means, for Americans, leaving Wednesday. Memo upcoming re travel considerations. B. Wong: Some concern with SOs re scheduling other meetings. 1. McLaughlin: ICANN staff has previously paid a mediating role between DNSO and local host committee. Want to prevent local organizers from getting requests that there’s no money to pay for. 2. Blokzijl: Would like to consider in the future the extent to which ICANN supports by ICANN for the DNSO whereas other SOs are self-supporting and, indeed, support ICANN in part. 3. McLaughlin: So far, do the best we can to provide free meeting space. Have paid for video projectors at times. Outstanding debt of ~$3000 to Berkman Center for webcasting; has been cut off for nonpayment. C. Roberts: Existing policy is that SOs will ultimately support themselves for out-of-pocket costs. DNSO has asked for substantial cash funding. Blokzijl suggests that Board would not be inclined to do so? 1. Crew: Continue as we are. 2. Wong: SOs should be treated equally. All self-supporting or all funded in the same way. 3. Cohen: Concerned that Board is being asked to do so much – hold meetings, do outreach, conduct studies. Community needs to recognize legitimacy of ICANN and its ends, and fund ICANN properly. 4. McLaughlin: Should refocus on needs for Yokohama. Have told ASO and PSO that we’ll provide meeting spaces for them. Suggest that to the extent that space permits, we’ll provide space to all SOs. But beyond that we can’t provide other significant technology outside webcasting which costs little more on the margin for an extra day. 5. Roberts: Sounds like Board isn’t prepared to pay serious money for services for particular SOs. XV. Meeting Schedule for 2001-2002 A. Roberts: Think that agenda for 2000 can be accomplished in three meetings. Board now seems to prefer four quarterly meetings per year. Proposal before us is for four meetings in 2001. Meet in the first or second week of the last month of each quarter, except that fourth quarter meeting is in mid-November, not early December. Will take proposals from South Asia in their summer of 2001 (March), Latin America in June 2001, Europe in September, West Coast of US or Canada in November. B. Wong: Firm dates? 1. Roberts: Not yet decided. 2. McLaughlin: Helpful to know when there are conferences or other meetings that might reduce travel burdens. Don’t know this yet. So some flexibility. C. McLaughlin: Post this schedule plus meeting requirements. Request proposals by May 1. D. Roberts: Some directors would prefer notification as long as eighteen months in advance. E. Crew: What about Australia? 1. Roberts: March 2001, perhaps. F. Wong: Order of rotation? 1. Cerf: Take into account weather. Warmer is better. G. McLaughlin: Upcoming dates: September 27-28, November 13-16 (LA). XVI. Resolution to Thank Local Hosts and Sponsors XVII. Wong: No other business, so adjourn meeting. CONTACT INFORMATION For additional technical information, please contact: Ben Edelman and John Wilbanks |