Scribe's Notes
November 3, 1999
Los Angeles, California
ICANN Public Meeting

I.   Welcoming Remarks - Dyson
   A.   Want to introduce Yvonne Burke, member of Board of Supervisors of LA County. Force for inclusiveness. Celebrate diversity in audience and Board.
       1.   Welcome to LA County. 10 million people -- would be the twentieth largest nation in the world. Continuing to convert from aerospace industries to peacetime industries for the next millennium. Tribute to Dr. Jon Postel, key for developing Internet. ICANN has real challenge. Impressive Board; tremendous responsibility to move into private sector what has been considered a government enterprise. Confidence of people regarding access for business and government is very important.
   B.   Introduction of Joe Sims. He will in turn introduce Mort and Lois Postel.
       1.   Sims: I have the pleasure and privilege of starting the meeting by remembering Jon Postel. The journey has been longer and more complicated, and certainly more contentious, than expected. It has also been infinitely sadder due to our loss of Jon, whom all of us had come to like as well as admire. I think today he would have been proud of where we are and how we have gotten here. The credit must be shared among many, too many to name, but in a significant way I think Jon would have been most proud of and grateful to the ten he invited to join the Board. I think it would be appropriate to begin this meeting with an appreciation of their efforts. [Applause]
            * Without this group, which has put individual feelings aside to work as a group, we would not be where we are. We have missed Jon's credibility and common sense but we remember him as we look to where ICANN is and to what it will become. We are fortunate to have his mother and two of his brothers here to give us some thoughts. Lois, Mort and Ross Postel.
       2.   Lois Postel: When Jon received the silver medal in Geneva from International Telecommunications Union, he got up and said "thank you" and then sat down. But I'm going to go on. In the year since he died, he has been honored by a number of organizations and individuals. In the few years before his sudden death, he received the Dvorak award and others. He was there when the first computer network was born. On the day we received this invitation to speak, I had just sent a snail mail letter to a group with a scathing article against ICANN. The group was unhappy about the overblown secrecy issue and the funding problems.
            * Jon knew ICANN would not be easy to establish, and that the process would be politicized. It may be well to remember RFC 793 and Jon's conciliatory skills. "Be conservative in what you do, and liberal in what you think of others."
            * The grove in Jon's honor has ten trees, all alive and prospering, just as ICANN will.
       3.   Mort Postel: What would Jon say, and what did he intend? This is what he intended. There are many conflicts, and the decisions made here will have many repercussions. I know he would apologize to the interim board for involving them in such a contentious process, but he would be glad that no one dropped out. This board has set a standard of integrity that will be hard to meet.
            * You've all heard the joke, "On the Internet, no one can tell you're Canadian." There is still concern that this group is biased towards the US, but diversity is increasing.
            * The board and ICANN must keep posterity and global impact in mind.
            * The trees are still small in Jon's grove, but I hope that they will grow. ICANN is still a seedling, but let's not chop it down yet.
            * I have mementos for the Board. I have a pile of rocks from some of Jon's favorite places that have been shaped by the actions of nature. ICANN must be so shaped by its experience. Also, they can symbolize the rocks thrown at you during your efforts to do the right thing.
            * I often think of a condolence message. [Paraphrase] "Deepest condolences from Morocco. I never got to know Jon Postel personally, but I feel that I have lost a big brother." On the Internet, people you never meet can be your big brother.
       4.   Sims: I would like to single someone out for recognition and gratitude because she is a government functionary who represents the best of government. There are many conscientious, skilled and honest people in government. ICANN was created by the Internet community but it was midwifed by a government trying to get out of peoples' lives on the Internet. This was a unique privatization because it was of a global resource in which all of the world's governments claimed rights and had interests. Many legal issues, lawyers, technical types, nongovernmental organizations, multinationals, etc. A tough problem with strong players on all sides, and all people had to keep talking in order to make this work. The person who made sure that everyone stayed at the table was Becky Burke.
       5.   Burke: This has been an incredible team effort. Karen Rose, Lynn Beresford, etc. I want to thank the interim and new board members, the ICANN team, and all of the members of the community who have dedicated many hours and much emotion to the process. We sometimes get so involved in the day to day issues that we fail to stand back to examine what we're doing, why, and whether it is working. I reminded myself that what we are doing is a breathtaking undertaking, not because we are privatizing management of a large system because that's been done before. Rather, we're moving this into private-sector management when all is in flux. We don't know what the impact will be on our economies, our relationships. We haven't all interest groups around the table or how long this domain name system will be in place. We are acting in the eye of a hurricane, which is important because it expands the possibilities for what this process can be. We should all stop and think about how big a deal we are doing.
            * I was called by an audience member after the Green Paper was published who was shocked by the fact that the US was really going to turn this power over. We are truly committed to this, and to the same degree or more than on the day when we first said it publicly. We are very impressed with the accomplishments of this body. We have competition, the beginnings of an organization to which there is no counterpart.
            * In a conversation with Magaziner about our status, I said it's going ok but we underestimated how hard the private sector management would be to implement. He told me that was a good thing, because we wouldn't have done it otherwise.
            * I knew Jon Postel only briefly but he made a deep impression on me. He didn't like being in Washington, DC, very much, but he ate lunch there in the White House mess. He didn't look like many of the other people eating there, and I wish I could have heard the phone calls Magaziner must have received about it later.
            * I think we will look back on this and be proud of what we have accomplished.

     Introduction of New Board Members
 6.   Dyson: One of our great birthday presents is the arrival of our "younger sibling" in the presence of our new board members. Two (Cerf and Abromatic) send their apologies
            * We don't know where we're heading, but we want to an extent evolution in the market to take its course, but with the guidance of all of the Internet community.
            * Wong: I am here through the ASO. Hong Kong native and resident. New Zealand citizen educated in the UK. Co-founded first licensed ISP in HK and have been involved ever since in groups throughout Asia -- academic and business/trade and operating groups.
            * Blokzijl: Netherlands. Nuclear physics background but haven't touched it in ten years due to Internet involvement. IP operators forum in Europe, also Netherlands Internet exchange. Elected by ASO. Background is more in numbers than names but I do know about names as well. I will be actively involved in all different composing parts of ICANN and Internet.
            * Pisanty: National University in Mexico. DNSO elected me. Telecommunications and networking efforts in Mexico. Much trust has been placed in us through election process and I hope to show that it was not inappropriate to do so. As an academic, I have a commitment to keeping a wide-open outlook on issues. An expectation exists for non-US and non-North American members of Board to help foster a more realistic and strong participation by others like us.
            * Fockler: Canada. Networking and Internet since early 1980s. I have been heading Internet organizations since retiring from IBM. I have general management and Internet governance experience to help support maturing of ICANN to the benefit of the Internet.
            * Cohen: Canadian, but I will slip unnoticed among you. Intellectual Property lawyer. DNSO formation involvement for quite awhile. I have been helping create intellectual property constituency of DNSO and have been elected to .ca ccTLD management body as well as this one.
            * Davidson: PSO council; techie engineer. Group Standards for BT but it doesn't direct my activities. National and regional standards organization cooperation background. I hope to bring that experience to bear in my ICANN work. ITU involvement. I will work to the best of my power to forward all in the best interests of ICANN.
            * Abril i Abril: DNSO and lawyer. Continued commitment to make ICANN succeed. Coordination in public interest to ensure oversight and competition where it is beneficial. Private sector leadership in increasingly global way. Names Council sent me here to make these meetings longer and theirs shorter. I am rather radical and colorful in my opinions but seek to be reasonable and practical in my actions.
       7.   Dyson: I would like to recognize our staff, which has done an enormous amount of work. Mike Roberts, like everyone else, walked into this without knowing how much he had taken on, but I would like to show our appreciation. [Applause]
            * Dyson: Touton from Jones, Day is our newest staff member and McLaughlin who helps us keep the wheels running and in the right direction. Josh, Suzanne, Joyce, and Anne-Marie should be recognized as well. We have a great team to move forward this year.
II.   Reports from SOs
   A.   ASO Presentation Given
       1.   ASO Agreement signed by ASO representatives, Roberts.
   B.   DNSO/NC: Chicoine
       1.   Since Santiago, have focused on elections -- procedures, nominations, elections. All votes are public on DNSO web site.
       2.   Meeting yesterday had sixteen of nineteen NC Members present.
       3.   Discussed method of choosing chair of NC -- rotating versus semi-permanent. Will nominate someone on the next teleconference to be Chair until the ICANN meeting after next (Summer 2000).
       4.   Discussed proposed ICANN/NSI/DoC agreements.
            * Concern about lack of bottom-up process. Formal statement to be submitted shortly.
            * Variety of views on NC re the agreements. Not sure if the agreements are within NC's jurisdiction. Deadlock re substance.
       5.   Discussed NC relationship with GA. Need better understanding.
            * Berkman Center procedure proposal ([]) perhaps solves a portion of the problem.
            * If the GA lacks power, is it useless? Need more structure? Further consideration needed.
       6.   Funding: Each constituency to pay $5000 for past expenses (room rental, webcasts, etc.). In the future, need to discuss how costs will be distributed between constituencies.
       7.   Procedure-- Berkman Center proposal presented. Lack of procedure a problem in prior meetings, especially Santiago. Procedures to be approved by general consensus. Further consideration to come.
       8.   Discussion of UDRP.
       9.   Question & Answer Session.
       10.   Thanks to secretariat (Porteneuve) and to Berkman Center.
   C.   PSO: Moore
       1.   MoU signed in July at IETF meeting. Four signatories: ITU, IETF, ETSI, W3C.
       2.   Members of protocol council now in place.
       3.   Secretary support to be shared among signatory members.
       4.   Have put forth three Board Members to ICANN.
       5.   Ready to support ICANN with technical expertise.
III.   President' s Report - Roberts
   A.   Work could not have been accomplished without support of community.
   B.   Presentation of Highlights Document
       1.   Thanks to staff, esp Molly Shaffer Van Houweling.
IV.   Committee and Project Reports
   A.   Governmental Advisory Committee: Paul Twomey
       1.   Congratulations to new members of Board.
       2.   Thanks to ICANN Board and Staff, supporting international organizations, host countries.
       3.   31 distinct economies & national treaty organizations present this week.
            * It's pleasing that so many countries and organizations have chosen to participate.
       4.   Working on making meetings more open while keeping them effective. Example: Invited representatives of ccTLDs to participate in the relevant portion of the meeting, and that part of meeting was open to all.
            * GAC website available through ICANN site.
       5.   Communiqué issued yesterday.
   B.   Root Server System Advisory Committee: Murai
       1.   Presentation Delivered
   C.   Ad Hoc Group: Kraaijenbrink
       1.   Teleconference after Santiago
       2.   Charter now prepared.
       3.   Comments received from AIP, others.
       4.  "Birds of a Feather" meeting yesterday was constructive.
            * New text resulted, for consideration tomorrow. Clarifies that group will only identify (not resolve) issues since actual problem-solving work to be done in other parts of the Internet community.
       5.   Work of Group to be conducted in ICANN Public Comment Forum. Small drafting group to be chosen by Board. But conclusions to be reached in Public Forum.
   D.   Implementation of Uniform Dispute Resolution Policy: Touton
       1.   Consensus received from DNSO in Santiago that a UDRP be adopted.
       2.   Board approved and accepted that recommendation, but noted that language was needed to adopt the policy. So staff instructed to prepare the appropriate language.
       3.   Small drafting group suggested wording. Further refinements and corrections to assure consistency of text with the Santiago resolutions.
       4.   Text approved on October 24 as consistent with Santiago resolutions. Staff instructed to go forward with policy by working with registrars, dispute resolution providers.
       5.   Policy documents [posted on web:].
       6.   Intend to watch policy closely to assure that it's workable, fair, predictable.
       7.   Anticipated implementation schedule:
            * Currently-accredited registrars to follow it starting on December 1.
            * At least two providers to be approved by December 1, perhaps as many as six.
            * After NSI accredited, it will use policy also.
V.   Public Comment
   A.   Dyson: Think legislative record is complete. Wanted to balance various interests, subtleties. May not last forever, but it's clear and predictable. Think it successfully clarifies intersection between domain names and trademarks.
   B.   Rony: What was urgency of UDRP? Why not wait until newly-elected Board Members could weigh in on this issue?
       1.   Dyson: Work on basis of consensus. New members and old members would have come to similar conclusions re whether or not there's consensus. DNSO wasn't unanimous, but there was a fairly clear sense that a UDRP was needed. Registrars want to go forward with their business, and that's why we moved ahead.
       2.   Cohen: Understand the concern. But having listened to all concerned in the DNSO-- including non-commercial and other interests -- it seems that this process is badly needed. Not important whether the Board at the time was elected or appointed. Most important that there be a policy in place. It's too bad there was as much of a delay as there was.
       3.   Abril i Abril: Challenge assumptions: that Initial Board not legitimate enough to take these sorts of decisions, that the Initial Board made the policy (not the case -- others contributed), etc. This policy is worth a try.
   C.   Remote comment (Mikki Barry #642):"UDRP not consistent with the Santiago resolutions because there was no provision for any type of reverse domain hijacking preventions."
       1.   Touton: Tarnishment was always in documents. 99.83 section 3.a included that language. Drafting committee discussed at length how to express that language; ultimate wording was extremely close to what the Board had directed the staff. Thought it inappropriate to be "punisher" of reverse domain name hijacking -- so not appropriate for it to impose sanctions (fines, etc.) as some proposed. Board asked for implementation that would minimize reverse domain name hijacking. That's what this attempts to do.
   D.   Menge: SBA wants to assure that rules are fair to small businesses. Wrote a letter expressing concerns but have received no response. Concerns re openness and transparency. Process must be usable by all affected policies, not just large corporations. Chief counsel is extremely concerned.
       1.   Dyson: Letter received and posted. Timetable for response seems short, but working on it. It's an issue of concern. ICANN does want to "operate on Internet time" -- to be faster than traditional processes. 10 and 15-day comment periods are only as part of a larger sequence of comment periods. Nothing begins one day and ends ten days later. We believe there's adequate time to comment under the current procedures.
       2.   Fockler: Take the suggestion as friendly. Ready to work with staff on making improvements as necessary.
       3.   Wong: Thanks for offer of assistance. Would prefer a formal policy.
   E.   Parisi ( Received a letter: "USG has assigned control of DNS to ICANN & represents big business & intends to tax Internet infrastructure & ICANN will hold meetings November 1-4 & please attend." Don't know much about the process. But it seems like ICANN is too generous to the trademark lobby. Were threatened by a company called White House which makes applesauce, etc. 200 world-wide trademarks on the term White House, 32 of them in the US (coffee, tea). Some companies own literally thousands of domain names. Policies cannot prohibit "" and similar sites.
       1.   Dyson: Note that policy doesn't prohibit New policy gives you a sort of defense against people trying to sue you.
       2.   Touton: Comments are heartfelt, but realize that they're not tied to the UDRP. Indeed, only relation between those concerns and this UDRP is that this UDRP is not some other UDRP that would justify those concerns. This policy specifically protects the "sucks" sites. And note that this policy doesn't address the difficult questions on borders of trademarks and domain names.
   F.   Gallup (Domain Name Trust, registration service for .MD): Have requested openness of meetings of GAC. In Berlin, meetings of this Board were closed; now they're open as a result of Congressional criticism. Bylaws says "operate to maximum extent feasible consistent with procedures designed to promote fairness." Also required is for minutes to be posted; don't believe that takes place with GAC. GAC meeting should at least be open for observation if not for comment. At conclusion of yesterday's eight-hour meeting, the GAC came forward and said "have noted contracts and considered ccTLD issues" with nothing more of substance.
       1.   Dyson: Twomey? GAC is not a subordinate group of ICANN. ICANN recognized GAC, didn't create it. Whatever we think of its rules, it sets its own rules, and we don't control it any more than it controls us.
       2.   Kraaijenbrink: GAC not a subordinate entity in ICANN. It's an advisory committee to ICANN. Sets its own rules. Personally support the GAC's rules.
   G.   Datoc: Question for later: Why weren't the .com, .org, .net registries put up for competitive bids?
       1.   Dyson: That will be asked and considered later.
   H.   Concerns re WHOIS: Recommend pointing the WHOIS to the registry. When customers register through competitive registrars, the WHOIS doesn't reflect the registration and they blame the registrar.
   I.   Bariarz (Remote #643): Yesterday someone said corporations wouldn't use this UDRP under its existing form. Considering this? Why not just let courts decide?
       1.   Touton: True that many trademarks would have liked a more expansive policy to resolve disputes. Instead, the policy refers many questions to the courts. Other questions best directed to DNSO. Future refinements to the process should come from DNSO bottom-up process.
   J.   Connelly: Would like to challenge GAC's membership based on citizenship rather than residency. GAC yesterday said they were aware of people with residencies in multiple countries, but that's not the general case and shouldn't be how these questions are decided. Should let constituencies use their own judgment re who contributes best to the work at hand.
       1.   Crew: Has been considered. Were swayed by the GAC -- to which we looked for advice since they're concerned about, expert on the subject. Their position is that citizenship is a more firm factor, less easily changed, so the best way to identify regional diversity. In general, members of ICANN will be identified by their mailing address. But people running for office should have to demonstrate their citizenship.
       2.   Abril i Abril: Residency more important than citizenship.
       3.   Dyson: Will need to revisit this in the context of geographic diversity generally. Hope that common sense will prevail.
   K.   Bibbins (SBA): Support Menge, also want to add: Need to ensure actions affecting small businesses have been reviewed by constituents of the small business community. Small business drive modern US and global economies so their needs should be taken seriously. Note that charter of ICANN requires that small businesses be taken into account. Need representation in ICANN not just of a few small businesses but of many.
       1.   Roberts: Well-taken. Discussions with DoC last March emphasized low barriers to entry of competitive registrar companies. Set criteria for accreditation relatively lower than others might have liked in attempt to lower barriers to entry. Many accredited registrars are small businesses.
       2.   Abril i Abril: My clients are small, so I understand. Most important issue is not the length of comment periods but making the process generally.
       3.   Dyson: Important that we make process approachable to small businesses generally, not just to let small businesses be registrars. Question for audience: Who thinks they represent a small business? About half of audience. See these small businesses as an important part of the community.
   L.   Auerbach: Small businesses grow to be big businesses, and small businesses grow from individuals. Individuals going to be the victims of the UDRP. If UDRP were simply inferior to national law, we wouldn't need it because we'd just use national law. Need to recognize individuals as a constituency of DNSO.
       1.   Cohen: Need to be able to get justice without years of process.
   M.   Connelly: Some individuals participated in the UDRP process.
       1.   Auerbach: How?
            * Connelly: WIPO process, voice was heard.
   N.   Wilson: Much discussion about protection of famous trademarks.
       1.   Touton: Concerns are valid. Report in process.
   O.   Remote comments displayed on screen, discussed by Dyson: #648, 644, 640, 638 from Barry, Schaefer, Stoddard.
       1.   Touton: Expect that administrative proceedings can be completed in 57 days. Cost of about $1750 to $2500. To #648, it's not actually correct-- paragraph 4.c.3 where "Tarnishment" appears speaks of Tarnishment as a factor to go against allegation that a domain name holder is making fair use of the domain name. Re #644, personally believe that there was consensus although Barry is entitled to her viewpoint. Further modifications of the process should come from the WG.
       2.   Dyson: Tarnishment is just one criterion.
VI.   Report and Recommendation of Task Force on Funding-- Roberts
   A.   Copies of TFF report are on table outside
   B.   General consensus that TFF's report reflects general consensus of members.
   C.   McLaughlin: ICANN budget is for a fiscal year starting July 1 and was approved in Singapore in March. 1999 to 2000 budget in May summary. We may be able to retire working capital loans if surplus is realized. Task Force noted that the budget is provisional because we have little experience with our operating costs. We will continue to examine the accuracy of our estimates. Budget may need to take into account potential for extraordinary one-time charges such as start-up charges, etc. These might be extraordinary legal expenses, for example. Context of process that is bottom-up, subject to review, and to approval of board.
       1.   Reiteration of existence of prior year losses, loan obligations, and need to build up one-time expense fund
       2.   We must recognize that funding may need to be available in future for functions currently done for free on volunteer basis
       3.   How can ICANN assure public that its budget will not bloat beyond its necessary functional expenses? Over and under recovery issue. Task force suggested that budget deviations less than 10% either way be allowed to float. Others (>`0% in either direction) should require interim budget adjustment by the Board on a quarterly basis. Public comment and policy making process for decision-making.
       4.   Task force recommended future budget process providing for components such as formal involvement by registrars, registries, etc in the process of budget formulation and approval since they are from where funding comes.
       5.   Proper formula for allocating budget among relevant funding entities.
            * Key principles: - All ICANN constituents benefiting from ICANN efforts should contribute to budget - Not for profit and for profit entities should pay equally because they benefit equally (a) Drawing distinction is not feasible (b) However, realistic assessment of ability to pay should remain some component of process
            * NSI registry operation is capped at $250K contribution and NSI registrar is capped at $2million for all intents and purposes for the moment.
       6.   Task force recommended that continuing funding requirements should be allocated among name and IP registries and registrars on a per capita basis. This may not be the formula forever but makes sense for this transitional period
            * Experience will be best teacher
            * gTLD community: 55% - 10:1 50% to registrars, 5% to registries - Question of why gTLDs are asked for separate contributions according to registries and registrars. Rationale is that 1) reality is that one company is both registry and registrar in gTLD area. Concern of other registrars that not separating the two will allow capture of ICANN by NSI. 2) looking forward, there may be additional gTLDs registries in future so this system preserves flexibility for that possibility
            * ccTLDs: 35%. Allocated among 250 ccTLDs, less than $6000 per. This is still infeasible for some ccTLDs.
            * IP address registries: 10%. They are not for profit entities, member driven, don't charge per-number fees and have small budgets. Share works to $428,000 for the three registries in total.
       7.   Given global shares, how do we divide them among the individual members? Contracts will be the funding vehicles (see examples in agreements). How do we get from global shares to language providing funding obligation in contract? gTLD registry is easy. gTLD registrars contract to accept ICANN funding system. Fixed fee and variable component. Registrars have been concerned that it be proportionately fair to all, so no subsidies.
            * Formula: [see web location of TFF report for details]
   D.   Roberts: Salient details from spreadsheet
       1.   Three columns.
            * Actual results are left-hand column. Financial report is posted on website. All Internet start-ups are supposed to lose money, but since I haven't detected an IPO in our future, I don't like it.
            * Center: Budget adopted by Board last May.
            * Right-hand column: Revised budget.
            * No certainty about financial activities, but this is a better snapshot than was last spring's.
   E.   Task force member comments:
       1.   Ribeiro-Filho: Thanks for all your hard work. Task force worked hard and should be congratulated. Two major things have been achieved.
            * Moving away from charging based on address and names fees. We have found a way to charge based on shared division, but a better shared division. We can still do better.
            * We are opening a door for whole community that contributes to ICANN to have a voice and a role with ICANN in preparing future budgets.
            * We seek feedback from all and welcome your comments. - Help us define the rules by which each constituency will allocate the burden of its funding obligations
       2.   Maruyama: I was a ccTLD person in the Task Force and contributed from its point of view, but helped to draw a picture to help all.
            * ICANN must maintain and preserve its rights of free speech both within and without ICANN. Financial stability and independence are vital for this purpose, so we must collaborate as a community on the funding issues.
            * Why do ccTLDs have to help fund ICANN while it still does not fund root name server service? Root name server service is one which must be provided by ICANN yet it is not funded. My answer to this question is that Internet has previously faced problem of inconsistent alternative root servers that caused chaos for Internet. Now we don't have that problem, and that is result of current democratic system of ICANN and DNSO. Their role functions as a protection against this variety of anarchy. ICANN is not providing root server service at the moment but is still providing stability for it already. Therefore ccTLD and gTLD and IP registry communities are all already receiving benefits from ICANN and they should respond with fair funding for ICANN.
            * If ICANN fails for financial reasons, then we will see the emergence of anarchies reminiscent to those in past, or domination by a nation as a superpower, and both of these alternatives are nightmares.
       3.   Telage: Task Force achieved good success in short time on tough issue. NSI is pleased to be in a position to provide much support through role in gTLD.
            * NSI's only opposition: Formula is elegant and a good one. A subtlety in definition in terms should be highlighted. Little n and big N would be better if they didn't penalize incumbency every quarter. Little n should be number of registrations that a registrar has added in a given quarter, and big N should the total number added by all registrars in that quarter. This market share would be better reflected, and market share is better reflection of accrued costs that need to be allocated. The current system doesn't hurt NSI in next few quarters but will not reflect change in competitive environment as quarters go on. - Wong: How would the first quarter be treated? (a) Depends on when effect is active. We expect that to happen on November 5 we would be liable for fees based on the caps we've agreed upon. First quarter would be partial one, meaning that we would be prefunding on date of signing. Next quarter we close off and registry would take a snapshot of all entries made between Nov. 5 and Dec. 31 for all registrars competing in that period, and do the N/n calculation and pass it along to ICANN for billing purposes. Jan. 1 to March 31 would follow same process. As publicly traded company, we are required by SEC to do public accounting for quarterly numbers and we would make data available to Roberts under nondisclosure agreement for ICANN to use for the billing within 30 days of the close of each quarter on standard business calendar.
VII.   Q&A:
   A.   Suppose representing a registrar. What to tell customers re additional costs to be paid to ICANN? Some way of summarizing costs so registrars can understand what's expected of them?
       1.   McLaughlin: Constantly changing. Some share of the registrar's fixed fee (share depends on how many names the registrar registers) plus some per-registration fee. Could predict it based on previous quarters. ("If my total number of registrations is the same as last quarter, and if other registrars register the same number as last quarter, then my fee will be the same as last quarter.")
       2.   Roberts: Things are going to change. (If not, why go to all this trouble?) Members of TFF were clear that they wanted fees tied to business volume.
   B.   O'Brien (.nz): Not angry. Will have to tell own Board about the current issue. One third of funding ($1.5 million) slated to come from country codes. What if that money doesn't come? But paying the $1.5 million without a contract? With no term specified? Need to formalize the relationship. Also, concern that one third of funding doesn't get one third representation on the Board.
       1.   McLaughlin: Staff committed to determining a sensible, fair, and equal relationship with ccTLDs. Want to have contracts as appropriate.
   C.   Curran (ARIN): Not angry. Recommendations on general principles, budget, allocation, implementation are all very sound and commendable for the time elapsed. But realize that ongoing funding of ICANN will be subject to approval of member organizations.
   D.   Staub: Re Telage's concern about payment based on total market share ("stock") versus current ("flow"). An astonishing suggestion when the organization that makes the most money off of domain registrations already has caps on its funding of ICANN. Understand that this is because of the budget veto power given to NSI in the contracts. But I'm surprised to hear Telage want to go even further in exercising this kind of control over ICANN.
       1.   Abril i Abril: Kudos to TFF. Still uncertain re proportions-- perhaps ccTLDs being asked to pay too much? Or perhaps some relevance to funding that certain ccTLDs have separate registrars and registries, perhaps both of which should help fund ICANN? Re representation, ccTLDs are represented through DNSO.
       2.   Blokzijl: Do not represent any ccTLD or gTLD. Constituency is the IP registries.
   E.   Goodwin (#656): What checks and balances on the board not to increase spending?
       1.   McLaughlin: Budget process is open and transparent. People paying money get a role in scrutinizing the budget and commenting on it. Proposed contracts with NSI and DoC provide a cap on the largest registrar's budget, indirectly capping the budget for everyone.
   F.   Porter: Customer of IP registry. Think they're already paying ICANN as much as is appropriate. Could do without domain names if necessary, but not without IPs. IP registries are non-profit and are therefore limited in their ability to fund ICANN.
       1.   Roberts: Community had a free ride on the US taxpayer for a long time. No longer. TFF is representative and feels strongly about the integrity of the process they used. Notice that no entity asked to pay "a percentage times an unlimited amount."
   G.   Iriarte (#657): Read in full. Thinks ICANN on its way to being a plutocracy.
   H.   Narra (#658): Read in full. How to assure Markle grants used as intended?
       1.   ICANN is organized as a not-for-profit. So under US tax laws, it's obliged to use the grants it receives according to the purposes specified in the grant requests.
   I.   Telage: Understand that charges to be based on both renewals and additions. Question is whether charges to be based on transaction volume for each quarter or based on all registrants from that registrar.
   J.   RIRs have been doing IP allocation since long before ICANN Board assembled. So it's hard to say the RIRs are obliged to pay for part of ICANN. ARIN supports paying its share to keep ICANN going, but not sure if there ICANN will have all that much substantive involvement in IP allocation policy. If RIRs thought to have a debt to ICANN, why no such debt by PSO?
   K.   Why not charge dispute resolution providers? After all, they're making money as a result of the ICANN process.
       1.   Dyson: ICANN has no contract with them.
       2.   McLaughlin: TFF didn't think about that at all.
   L.   Schaefer (#659): Read in full.
       1.   McLaughlin: Premature.
   M.   Amato: Want to clarify that Nader organizations have not received funding from Markle.
VIII.   Lunch-- reconvene at 1:30
IX.   Report AND Recommendations on Proposed ICANN/NSI/DoC Agreements
   A.   Touton: ICANN has been involved with DoC, NSI in .com, .net, .org competition testbed on registrar level. Testbed for both technical and legal issues. Comments received and changes made.
   B.   Sims: Intend to be factual and not an advocate's view. ICANN came into existence in November 1998 expecting to reach agreements with key constituents. Didn't happen that way. NSI felt it entitled to protect certain interests, making it difficult for ICANN to move forward in the way it would have liked to. Given that position, NSI had the opportunity and the means to delay the transition to private sector management of DNS. Parties intended and needed to reach an agreement. Negotiations were professional.
       1.   Instructions from Board: Don't compromise on basic principles of ICANN. Do not agree to anything unworkable. Create maximum room possible for competitive market forces.
       2.   Now have to decide whether these agreements meet those criteria and whether agreements advance ICANN's mission. I think they do. Reasons:
            * Time to move on. Only way to resolve the situation in a timely and predictable manner is with an agreement.
            * Advances ICANN's policy goals. Definition of consensus policies is a significant improvement over status quo. NSI's commitment to participate in and abide by the ICANN process; given their importance in DNS, this is a substantial accomplishment.
            *"Did NSI get too sweet a deal?" These agreements compare reasonably well to any agreement you could practicably hope to achieve. Consider: Suppose DoC and ICANN wanted to rebid the .com, .org, .net registries, and suppose that NSI didn't take steps to slow that process down. Then the new registry operator would likely get a term of at least five years. Price uncertain, but it wouldn't be less than zero and might not be much less than the $6 of the agreements. The new registry wouldn't be allowed to be a registrar (although that's also accomplished by the proposed agreements).
            * So, relative to that outcome, this agreement seems reasonable. Likelihood of significantly better deal unlikely. NSI might have tried to exert rights it believed it held.
            * This is an agreement that I am heartened to see despite my initial concerns. Thirty days of comments from lots of people has not turned up anything that I believe goes to the core of these agreements or that makes me think we missed something big. Points have been raised by comment period that have merit. Some are relatively small and easily handled. Others are bigger and are still in discussion with NSI. Some of the comments were really either not persuasive to me and the Board members or are subjects on which there was hard negotiation that led to the best outcome we believe we could achieve.
            * We as a board have read all of the comments that have been filed carefully and have taken account of them and have responded in appropriate and possible ways prior to presenting proposed agreement to the board.
            * We are at a key stage for ICANN. New gTLDs, relationships with ccTLDs, role of national governments in relation to ICANN, are all issues before us. We cannot move forward on these issues if we continue to be distracted by the subjects of the agreements. My personal view is that the better option for ICANN and the Internet is to end this stage of development and move on.
   C.   Burr: Department of Commerce endorsed this package of agreements in late September. We have read all of the comments and remain convinced that this is the right way to proceed. We had a specific set of objectives set by Congress and House Commerce Committee. We believe these documents accomplish all of the goals we set out in our July letter.
       1.   Meta principle here. Do these agreements, taken together, enable us to privatize the management of the domain name system in the manner that the US government committed to in the White Paper? Stability, bottom-up decision making, increased global participation were all goals, and we feel these documents forward them.
   D.   Johnson: As the NSI participant in the negotiations around these contracts, I am here to answer questions about our role. There are provisions that aren't what we would have chosen alone, either.
       1.   Framework for ICANN. Need to create and define a community consensus based process that allows ICANN to develop policies and enforce them as well by means of binding contracts.
       2.   Key beginning step. Richer collaboration and constructive discussion to follow.
   E.   Public comment and Board questions.
       1.   Dyson: We'd like to explore these agreements and the remaining few points requiring agreement. We'll get a sense of where we are from the questions asked. I think most agree that the overall shape is good and it's time to move on. Each side feels that it has compromised.
       2.   Abril i Abril: I don't like all of the details but we're being asked to look at the whole picture and discuss details later. Does this establish a sufficiently competitive model and allow ICANN to move forward?
            * I have serious doubts that the competitive model is adequate. WHOIS, contribution caps, pricing, remain troubling. But these can be dealt with later because antitrust laws and other regulations will continue to control NSI in its registrar/registry capacity.
            * Meta question is indeed the key one. Is this a step forward for ICANN in assessing its role in the Internet? Yes, but . . . For ICANN to further its goals, it must bring NSI into the game and convince it to surrender some of its litigation arsenal, which has been done through the agreement. But also, ICANN must go further. Milestones, assurances, guarantees are needed to be sure that ICANN fulfills the role intended for it. Transfer of management of root server is important. Burr should be more explicit about how she sees the sharing and progressive sharing of policy oversight, because this is what ICANN is about.
            * Burr: US remains firmly committed to the transition to private management. However, stability of the Internet is a paramount value and so transition must be careful and sure. Agreements move us closer to goal of ultimate transfer because they provide enormous aid for stability. As to specific question about management of root, we have an expectation that we will in near future receive technical proposal from ICANN regarding management of the root. We have said in the White Paper and every other communication about this that management of the root should go to the corporation that is doing this work: ICANN. Since stability is key, we will look at the security and other technical aspects of the proposal carefully, but we will are looking forward to receiving a robust proposal.
            * Sims: ICANN has made conscious decision not to seek transfer of root service to date because we did not believe that we could responsibly, to date, handle it. We could not yet guarantee and warranty to the Internet community that we could successfully manage the root server. I think the successful adoption of these agreements could change that significantly. These and the funding proposals will eliminate our highly visible financial instability and, with the SO's creation, eliminate or significantly reduce potential for organizational instability. We are close to making the representations about our readiness to the US government.
       3.   Wong: I hear that there has been compromise on all sides in intense negotiations. Are we compromising any long-term viability of ICANN in service to short-term goals?
            * Dyson: USG will receive some money as a reward for its previous financial investments. The travails that would have resulted were too great to risk ICANN's now having real powers to foster competition and to create financial incentive to NSI to separate registry/registrar. We can look at other ways to handle market regulation now. We have escaped mire of litigation. On the other hand, NSI made financial compromises and got the definition of consensus that we all liked. I don't think any fatal compromises were made.
            * Sims: I don't think we compromised in any way on any basic principle of ICANN's existence or future operation. There is no policy compromise of any kind with respect to those basic principles. There are some process compromises and procedural things that we think are more burdensome to ICANN than necessary but these are on the margins rather than in the heart of ICANN's mission. An agreement was never the objective; an objective that furthered ICANN's ability to pursue its mission was. The same issues will be before us when we talk to the ccTLDs that we will have to accommodate in a way consistent with the missions and principles of ICANN. Process is not fast, but not compromising the principles is worth the wait.
            * Burr: These agreements do not only not compromise the future of ICANN, but they also contribute to ensuring the future of ICANN in the sense of articulating a clear mission and a vision of consensus articulated by the documents.
       4.   Cohen: Difficult process. My legal experience is that negotiation is always a difficult task, but especially when among three sides and on key issues. Going back to negotiating parties and asking for reconsideration is extremely problematic. With that as a preface, I will say nonetheless that many of the comments of other registrars have merit. NSI operated in good faith and as a responsible corporate citizen in coming to agreement. However, I urge them to consider carefully these concerns and do the best they can to address them as they become a most important member of the ICANN community.
            * Wong: But I just heard there was no compromise on core principles
            * Cohen: I am not talking about core principles; merely about some of the comments we've heard over the last few days.
       5.   Triana: Opening market to competition and eliminating exclusive rights of NSI and integrating NSI into normal ICANN procedures are great accomplishments. But we are conscious that we are going from an exclusive regime to a regime of special rights, with special market power still in NSI hands. It is still advantaged over other competitors, and this means we must be very vigilant in implementation process to prevent abuse. Also, nuances regarding price. Competition must be the instrument to bring the price down, rather than price cap. We can't allow barrier to entry to arise for other registrars through pricing. Additional costs that will appear in the process. Finally, very contentious matters remain in the intellectual property area. Thus capacity to introduce changes by NSI without competition is an important concern to be addressed in the future. ICANN's role is not to look for institutional solutions. But we hope and assume that Department of Commerce will continue to consult and discuss widely with other governments.
            * Burr: I assure all that DoC made a commitment to continued international consultation on these issues in the White Paper and we are still committed. We are in extensive discussions with other governments and they help me remember that. We have benefited from suggestions and issues raised by other governments, as well as other concerns and approaches. This will continue. - We will be monitoring compliance and I am sure that the Antitrust division of the Justice Department will continue to monitor the process. The application of global laws will continue.
       6.   Dyson: procedural rules for Q&A session
       7.   Sims: Difficult to list all the things we're still in negotiations with NSI about. However, to be sure that expectations do not get out of proportion, I will say that most of remaining discussion is about semantics and preventing ambiguity in the drafting. There are some substantive issues remaining.
            * One significant point is the concern of the registrars that the agreement provides NSI with an unfair and inappropriate competitive advantage in the fact that general rule for all registrars is that they can't register names without taking payment for them. NSI will be bound by this like all others, but the Registrar Accreditation Agreement Appendix applying specifically to NSI waives this requirement for four months. Rationale was to allow them to make necessary changes in software and selling partner agreements. After reviewing registrar comments, I was persuaded that this left NSI with an inappropriate competitive advantage. We've made suggestions to them about how to handle this but they've not been accepted thusfar.
            * Burr: NSI has also made suggestions on how to handle this and we haven't been comfortable with them so discussions are ongoing.
       8.   Pelage: Secretary of registrar group: We have concerns. To wit: 17 of 18 at a vote said they could not support these agreements without clarification or modification. NSI was the only one to support in its current form
            * Sims: If your only two choices were this agreement or no agreement, you would vote against this one?
            * Pelage: Yes. We support the ICANN bottom-up process and we are participating in it by making **constructive** comments and we do not seek to work against ICANN. We ask only that the ICANN board to listen to the constituency that is being asked to provide 50% of its funding going forward.
       9.   Auerbach: Wong, you are a director, you have the ability to direct.
            * Also, DNSO was not consulted for these agreements. These will shackle the as-yet unborn at-large membership group. This gives money to ICANN and competitive advantage to NSI and this is classic smoke-filled room agreement.
       10.   Oler: DNSO is being told it is not needed because you have accepted agreements without asking us. US government should let ICANN board and SO's decide without interference
       11.   Lang: What will happen to as soon as contract is signed?
            * Burr: Content of internic web page will begin to list all of the competing registrars with hotlinks to their sites. Names will be transferred to the DoC. NSI has already begun unraveling the sites from the rest of its apparatus. We'd be happy to get proposal from ICANN to run the site but it won't be licensed to anyone else.
            * Lang: But what about RS?
            * Burr: Accreditation agreement and registry agreement reaffirm our goal that there be a single way to get access to all of the WHOIS data and that if there is not a single solution NSI will cooperate in a collective solution
            * Touton: The web page will be run for the DoC by NSI for a number of months but then there will be a transfer.
            * Lang: Big problem because American companies which register names with other registrars complain to me and other registrars because their names do not appear in WHOIS. This is a huge marketing problem as well as a technical problem. Negotiators do not seem to be aware of the problem.
            * Burr: This issue, of a simple way to get into a comprehensive collection of WHOIS data was a critical priority for the DoC. Distributed or collective basis, it is a priority.
            * Lang: You make sure you have oversight of website, but what about
            * Anthony: You can go to a website or use a whois client in UNIX and get NSI's results but not anyone else's. To get to central repository takes much longer string.
            * Burr: is being transferred to DoC
            * ?: WHOIS is broken; we have a partial solution today and we are working toward a better ones. Most of the new registrars address this with two-tier solution.
            * Burr: I don't see a problem with using internic web page to help with this solution
            * ?: Protocol is not a web page issue. Huge portion are done this way already. Can we get commitments to get this worked on quickly so that competitive disadvantage is addressed?
            * Dyson: Board?
            * Burr: You have a commitment to ensuring that there is a solution, whether web page or protocol.
            * [Time will be spent after meeting to address]
            * Touton: Single answer or full whois?
            * Crew: Whose agreement or cooperation is needed to implement?
            * Burr: All of the registrars?
            * Lang: No
            * ?: Engineer can write some software to solve problem. It's about how WHOIS was structured a long time ago. All separate pieces need to be brought together in one place. can be place where all info is brought together as one tree if we make technical changes.
            * Rose (DoC): Pointer is currently pointing to what currently is registrar data when what should happen is that registry data is accessed.
            * Wesson: I have code that fixes it and I will send it
            * Touton: Burr is talking about another aspect of the agreement that other aspects of the community care deeply about.
            * Necessary guarantees are in contract
       12.   Lang: Logic behind step back of US government not giving power over root server to ICANN? Will DoC inhibit the insertion of new gTLDs if ICANN recommends it?
            * Burr: DoC said in White Paper that new gTLDs were good idea but ICANN and community had to make the decision
       13.   Goodwin (remote): will there be a firm determination of whom owns the .com, .net, .org databases?
            * Burr/Sims: We concluded that if anyone needing the data would have unbounded access and use to full data without a problem then there was no reason to worry about ownership
            * Dyson: Public interests in its good use but also in its public use. Protections in how it may be used.
       14.   Heltzer: Thanks to DoC to sticking with commitment to universal WHOIS, which is very important to trademark holders. But what is the timeline?
            * Burr: We know it's critical but no date set.
            * Burr/Dyson/Wong: Let's address WHOIS with action item after this meeting to address registrar concerns
       15.   Wesson: WHOIS issues have been around since testbed. Question: if the contracts can't be renegotiated now, why should I believe that points of contention can be resolved in future?
            * Dyson: We're trying
       16.   Bramson: Registrars are trying to address issues in order to try to get agreements signed before we all leave LA. We ask DoC and Board to take a look at our proposals, specifically one about service level requirements to ensure viability of long-term system. Other issues are about short-term competitiveness and lowering barriers to entry. These are available to board and public.
            * Key points: - Credit; NSI can extend credit terms in a manner not consistent with others. We think NSI's ability to change pricing - Exclusivity arrangements with partners; drafting omission - Service level requirements. - Ability of NSI to exercise veto power over changes in registrar accreditation fees in short-term. - domain pointing issues - SRS protocols should be widely available so new registries are introduced there is consistency - Ability of customers to identify that there are multiple options for renewal of registrations
            * Dyson: If all of these were resolved, would all of the registrars then be able to approve the agreements? - Bramson: Not in a position to say. Group that voted not to approve may not be identical to group that produced this list. I can get you a list of those who signed this. - NSI: We just got this and haven't formed a position on all of the points. - Bramson: These are the issues we got consensus from broad base of registrars about
       17.   Hanson: Three comments
            * ICANN as an organization has a technical function under its charter and I hoped new board members aren't railroaded into making uninformed decision
            * Principles of White Paper; Postel and Internet evolved approach to bring competition and Fall 1997 USG convened interagency task force that favored it as way of bringing competition to marketplace. Consistency has been that new gTLDs will be best for competition and now we have new backroom deal for different means.
            * Stability and internic issues: Public is even less clear than this group and this confusion is destabilizing.
            * Burr: Interagency group never voted on anything and I was in it. Also, we think new gTLDs will increase competition but it is role of ICANN to say how or under what circumstances
       18.   Lindsay (registrar): We signed the document of 7 proposals. Maybe not all are achievable before agreements signed, but we look forward to having them addressed. Registrar group feels that it would be more bottom-up to have majority decide on fees
            * Sims: A valid concern of NSI was that if NSI's competitors could decide how to allocate fees might result in disproportionate burden on NSI. Seemed logical to us. We tried to deal with this in a way that would not adversely affect either our ability to fund necessary ICANN expenses or give NSI power over its competitors. Fees here can't be unilaterally raised by NSI but must be adopted as part of an ICANN consensus policy and only then will come before registrars for ratification. If you and the other registrars are successful in gaining market share, NSI will not have effective veto for long
            * Lindsay: Written ambiguously. NSI can veto any change in fees, not just any change in allocation.
            * Sims: I didn't think so but I'll check
            * Burr: We tried to make sure NSI couldn't veto fees and needed to strengthen ICANN, so we made sure that NSI had to pay before doing anything else.
            * Johnson: Goal was to produce general principle that those called upon to pay the fees agree, in general, to the level of the fees. Some comfort that those bearing burden would be comfortable but couldn't hold process hostage. NSI is clearly obligated to say yes to any fee structure that fell within a given range.
            * Sims: I have looked at the language and it does say that NSI is obligated to pay if allocation is fair and registrars approve. Transition agreement requires NSI to approve any fee lower than $2000000. They will only have veto if they continue to represent more than ¾ and ICANN fees rise to point that NSI's share is more than $2000000.
            * Latham & Watkins coffee and cookies - Thanks!
       19.   Gen: Focus on essential issue of privatization. Will agreements create a competitive market for domain name registrations? Many think not. ICANN is not and cannot be the representative of registrars. Registrars should have been parties at the negotiating table. A serious process fault.
            * Sims: Are the seven points sufficient to change the agreement from one in which registrars couldn't survive to one in which they could? For example, uniform credit policies-- four month waiver for NSI makes all the difference? Do you think the competitive market couldn't come into effect under the proposed agreements?
            * Can't speak for everyone. Don't argue that any single factor makes all the difference. Don't want to make a binary choice between approval and disapproval. Want a process of change to make agreements better.
            * Conrades: Lack of Service Level Agreement a top priority? Yes, by general agreement among at least a few. Say this needed for benefit of customers. If NSI Registry had problems, would affect NSI Registrar also, so perhaps NSI Registrar wants a SLA also. Hard to be in a service business without SLAs with key suppliers.
            * Sims: The agreement does include a SLA.
            * Johnson: Believe NSI is willing to have a SLA appropriate for the system.
            * Wilson: 45-day delay seems too long.
            * Sims: The document before us calls for a 45-day period to work out the details.
            * Sims: Agreement is clear that NSI cannot seek an increase in its fee for "adequate performance."
            * Johnson: Be careful to use metrics appropriate for a new registration system that's just been developed. NSI as registrar also wants the system to work and scale and so forth.
       20.   There is a service level specified in the current agreements: None! No guarantee that the SRS will work properly. Hard to believe that we'll get a SLA in the future given this text in the agreements. Consumers deserve better, so many registrars believe that the agreements must not be solved until this is fixed.
            * Johnson: First task was to build a spec for the system.
       21.   If NSI Registry and Registrar owned separately, then it's not certain that Registry will do what's best for Registrar. So still need the SLA.
       22.   Wilson: Concerned that agreement might limit what NSI can be required to do.
            * Johnson: A SLA assuring that the system operates at a given level of availability would not be precluded by this text.
            * Sims: But notice that other parts of agreement require adequate performance of system. Certainly intended for system to have performance standards.
   F.   Pisanty: Baseline service level for a baseline price. Perhaps there should be a system for some registrars to get premium reliability service for a premium price?
   G.   Forman: supports all seven points. In particular, that a prohibition on exclusive contracts between NSI Registry and third parties, and that the prohibition be extended for four months to reflect the delay in these agreements.
       1.   Sims: I don't read the document that way, so I don't see the ambiguity. It's not an issue now and it's not a problem for us to see that it's fixed.
   H.   Seltzer (#666): Non-transparency of access to registry a problem? Still governed by a confidentiality agreement that limits public oversight of name registration. Any move towards opening SRS?
       1.   Johnson: Will find out.
   I.   Congrats to NSI lawyers for serving well the interests of your clients. But ICANN Board has a monumental task. To USG, "Shame on you." Agreements are fundamentally flawed and illegal under US Federal Law. Should delay signing these agreements until there's a political solution. If no delay, a legal solution nearly certain.
   J.   Stubbs: Wide range of perspectives within the Registrar constituency. Support the seven proposals suggested. Concerned about prepayment ("discriminatory credit"). Registrars cannot register a domain until they've received a "reasonable assurance of payment" (appropriate credit guarantee). NSI will be bound by these terms but says that it will be unable to meet this requirement for at least four months. DoC and ICANN should require that NSI impose a work-around of some sort to assure a level playing field.
       1.   Burr: Not just a competition issue. Didn't only hear that from registrars.
       2.   Dyson: Still talking about this issue.
       3.   Sims: This point has quite a bit of merit. NSI has not accepted the proposal ICANN previously suggested that was quite similar.
       4.   Johnson: This legacy issue comes from the existence of systems and customer relationships that need to be brought into compliance as quickly as possible. Overall, considered as a package, we think this agreement introduces competition as quickly as possible.
       5.   Stubbs: But the program still being offered! This isn't just legacy.
       6.   Crew: Would it be equitable if the requirement on the accredited registrars were deferred until NSI in a position to apply same constraint to themselves?
       7.   Stubbs: Not appropriate because such policies encourage speculation. We're out here to solve problems, to be responsible.
       8.   Burr: USG would not support such an approach. Prepayment is necessary.
       9.   Cohen: A good point. IP community would be unhappy with any such encouragement of cybersquatting or similar behavior.
       10.   Waylis: still accepts registrations. Perhaps should replace this address with an autoresponder letting registrants know about the new competitive registration system.
   K.   Porteneuve: Will ICANN go bankrupt if it doesn't sign the proposed agreements tomorrow?
       1.   Roberts: Thanks to working capital, significant progress made.
       2.   Dyson: I don't think about this agreement in terms of bankruptcy. Whatever we do, if we do it for the right reasons, companies will support what we're doing by extending credit. That's not how ICANN should operate long-term, but neither should it sign an agreement on the basis of short-term financial considerations.
       3.   Sims: Placed no weight on money in initial stages of agreement. Money is relevant and important for obvious reasons, but money is no reason for the Board to decide whether or not to accept the agreements.
       4.   Field: These agreements fail to level the playing field for registrars. NSI not just registrar and registry; also does registration services -- WorldNic, now -- operated outside the cooperative agreement. Registrars will be worse off after the agreements than they are today.
            * Burr: Saying that you don't have the right (or the necessary information) to get in touch with your customers re their renewal options going forward?
            * Field: Shouldn't have to market again to the same customers to get them back into our database. Had to let NSI bill customers directly due to slow billing processes years ago, but it's not fair that NSI now thinks of those customers as "theirs" now even though we referred them.
            * Burr: Understand the problem now. Thank you.
   L.   Chon: Have talked to many ccTLD administrators. Generally support the agreements. Are concerned about USG involvement.
       1.   Burr: USG needs to continue oversight over NSI in case something unforeseen were to happen to ICANN. But so long as ICANN around to negotiate with NSI, USG to more or less stay out of the process.
   M.   Steele: Are these the best the USG could do to protect Internet users? Registry is a ministerial function and should always have been handled by a non-profit. Specifics: 1) Notification by registry to registrars of how they'll be using personal data is not sufficient -- need to let individual consumers know how their data will be used. 2) Can registry limit registrations of certain domain names? 3) Re "cannot single out NSI," may not make sense since NSI, for now, is the only registry.
       1.   Burr: Escrow for disaster recovery. No other use allowed or anticipate for the data. Have spent a lot of time working on privacy issues. But note that registry gets only domain name, IPs of DNS servers, and name of registrar.
       2.   Sims: The "disparate treatment" language is already in the ICANN bylaws and applies to everyone. It made NSI feel better and didn't cost anything.
       3.   Johnson: The language is in the bylaws. These agreements include essential protections from bylaws to clarify that these terms are part of the ICANN-registrar relationship. Superfluous so long as the bylaws remain the same, but helpful just in case.
       4.   Burr: Certain strings illegal under US Law ("NASA," "FBI"), and these restrictions to be passed on to registries.
   N.   Stanbach: Concerned at duration of agreements -- four years a long time. Year-long registrations very important. Why is the timeline for one-year registrations so long?
       1.   Burr: Agreements say "best commercial practices" which is meaningful as a term of art -- sets a high standard, and we expect this feature to be available by the new year. Re duration of agreement, the parties agreed on these terms as a fair deal.
       2.   Are these issues higher than the seven points?
            * No.
   O.   Chizmarik (#673): With adamant opposition of some registrars, the board should resolve these seven points or, failing that, reject the agreement.
   P.   Not sure that "continuing on to perfect the agreements" is really an option. This is just a base point, but if we don't make a decision now, the number of people wanting to be in the next round of negotiations may be too high to make agreements workable.
   Q.   Support policy and goals of ICANN. Might have liked to see the registry function rebid.
       1.   Burr: $6 was not a negotiated fee. It comes from Amendment 11 -- costs plus a reasonable profit.
   R.   Thrush: Impact on ccTLDs. Role of DoC in future negotiations with ccTLDs?
       1.   Burr: Come to negotiating table with no special power. Will similarly participate in future discussions.
       2.   Sims: One of NSI's concerns was that some ccTLDs operate like gTLDs -- with few, if any, restrictions on who can participate. NSI concerned about what they saw as significant constraints on how they can operate, while ccTLDs not so constrained. The language in the agreements reflects compromise on the subject.
       3.   Thrush: Let's defer this to a WG of DNSO, or even a hand-picked team, and get this done right.
   S.   Cade: Congrats at reaching any agreements at all. Support statement made earlier that this a significant milestone for ICANN & the Internet. AT&T supports the seven points from registrars. If it's essential to move forward in accepting the agreements, ask that the DoC and ICANN continue to focus on competition.
       1.   Burr: Absolutely committed to monitor things as they develop.
   T.   Van Couvering: Interesting to note the focus on process. Understand that the Board more focused on substance than process. But ccTLDs concerned about GAC, continuing role of governments in the process. An unpublished GAC document reduces ICANN's role? Openness and transparency clauses in bylaws have been modified or removed?
       1.   Sims: No significant changes made to bylaws.
       2.   Roberts: Have gone to great lengths to document what IANA does with RFC1591. Have attempted to be extremely clear that there will be no change in RFC1591 without full and open public comment in accordance with Article III. Take this very seriously.
       3.   Sims: ICANN like a great debating society. My reaction to the document you are distributing is not that it's "nonsensical." That single document doesn't undermine the process generally.
   U.   Flory: If all seven points addressed in some manner, Melbourne IT will be comfortable with the agreements. In particular, the prepayment model, the WHOIS data being used for spamming,
  V.   Froomkin (#675): Do current agreements prevent ICANN from creating a "privacy enhanced gTLD" -- a ".private" in which the registrant's contact details are not published?
       1.   Sims: No. W. Cochetti: Successfully addressing the issues of these agreements is necessary for ICANN to move forward. Negotiating a complicated deal is hard-- many issues to be balanced. Unwise to look at any single provision in isolation. Have to look at the deal as a whole. Of course there are particular parts the Board would like to change, but that's not the question. Rather, whether the agreements as a whole move the process forward.
  X.   Cohen: Thanks to the Board and negotiators for working in good faith. Y. Amato: Want to commend registrars for raising questions of procedure, due process, etc. No one on the board has said "less talk about process" which is an improvement. Why not more concern from non-US interests about DoC involvement?
       1.   Sims: It speaks for itself. There are theoretical situations in which DoC's intervention might be helpful and appropriate. If NSI terminated its recognition of ICANN, or if DoC did same. It would have been imprudent for DoC to "pass on all the keys to the kingdom" without retaining a way to come back in if necessary. This isn't a provision to be concerned about. It's in everybody's interest that, if ICANN self-destructs, there's some entity out there that can get involved. Z. O'Brien: Sims just mentioned competing registries. How will we know the list of competing registries?
       1.   Sims: We're confused. Said "there are out there in the world some ccTLD registries that have essential no restrictions on registrants in their ccTLDs. To the extent that they're out there, they could reasonably be thought to compete with NSI."
       2.   Dyson: No decision yet re which new gTLDs to add.
   AA.   Lindsay: Seven issues from registrars are not the most contentious. Pleased to hear that five of seven have already be addressed.
X.   Dyson: Drawing to a close. Are trying hard to be neither inscrutable nor hasty. Comments from Board?
   A.   Cohen: Can't speak for everyone else, but would like to complement the US and Americans as hosts. Process is aggravating, but US-style democracy has worked well and is particularly effective here. Debate was intelligent, informed, and civilized. Hope some of the remaining problems in agreements can be patched tonight.
   B.   Abril i Abril: Have heard the concerns of many registrars. But agreements feel like too much of a compromise, so they're troubling. In same situation as before agreements. Want to ask Burr for a way to measure objectively how far along we are towards having ICANN be the policy body. It's not an issue of not trusting or liking the US, it's just a matter of good practice. Presidential elections could cause delay. Let's accelerate as much as we can while we can.
   C.   Pisanty: With proper procedures, we should be able to handle the seven proposals. I am troubled that these are said not to be the most contentious issues; we need a measure of how many people are concerned and to what degree. If they are very important, how was something else more important? Non-US citizens on board would like to see more on policy power transfer but it is an ongoing process. Collaboration with US government for the time being plus transition to private and international regime. Enormous confidence after last few days that this process is going on in a very positive manner. Menge's request for obedience to Administrative Procedures Act: international community has other alternatives that we will work with as well although we will be consistent with US law as necessary
   D.   Wong: Seven points discussion productive. Dispute resolution provider perhaps being a funding source is a good point and shows process' worth. Autoresponder for host/master at The .com issue is key for some parties but not for all. ICANN is three-legged stool.
   E.   Dyson: We will have further negotiations this evening. I hope all here will mingle now. Thank you to classic and new board, thank you to Johnson, Burr and Sims, and thank you audience. Our first anniversary shows how much we've grown; it's been a very productive, albeit long, discussion. Thanks again to Latham & Watkins for the coffee.


For additional technical information, please contact:  

Ben Edelman and John Wilbanks
Berkman Center for Internet & Society at Harvard Law School 

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