Scribe's Notes - ICANN Public Meeting
 August 25, 1999
Santiago, Chile



I. Welcome - Florencio Utreras, Luiz Sanchez

II.   Thanks to local organizers - Esther Dyson

III.   Report from Interim Chairman - Esther Dyson

   A.   This meeting has real work being done with progress being made.

   B.   Ground-Rules

       1.   Use microphone when you speak for translation, for remote participants.

       2.   Identify yourself, your company if any.

       3.   Two minutes per speaker. If you can't say it in two minutes, then it's probably too complicated.

       4.   Not so interested in complaints about process.

   C.   Changes - now board meeting (tomorrow) will be open to observation. In LA in November, there will be new board members also.

   D.   Want to listen to participants here & online in order to determine consensus.

IV.   Introduction of the Board

   A.   Esther Dyson, Interim Chairman

   B.   Mike Roberts, Interim CEO

   C.   Linda Wilson

   D.   Hans Kraaijenbrink

   E.   Frank Fitzsimmons

   F.   Jun Murai

   G.   Greg Crew

V.   Introduction of the Audience

   A.   Show of hands by geographic region.

VI.   Report from Interim CEO

   A.   This is the third in a series of quarterly meetings of ICANN with stakeholders.

   B.   ICANN asked to accredit registrars, came up with policy, staff has been carrying out process since then. 60 registrars accredited.

   C.   Asked to consider issues related to trademarks and domain names.

   D.   Status report to USG in May. Reply: USG pleased generally, asked for a few things:

       1.   Work faster towards fully-elected board.

          ·Are doing so.

       2.   Limits on ICANN's powers?

          ·Agreed to be specific about limitations on ICANN's authority in contracts.

       3.   Concern about $1/domain in .com, .net, .org fee.

          ·Suspended collection of fee until November meeting when part of board is elected.

          ·To conduct further consultation with registries and registrars re funding mechanisms. Established a task force.

       4.   Conduct of board meetings?

          ·Decided to conduct tomorrow's meeting with public observation. Future boards will discuss the subject further.

   E.   Financial Difficulties

       1.   Financial Projections Document [link in HTML]

       2.   Expect to receive ~$100,000 in contributions by the end of the month. Some international participation from Japan, Israel, Netherlands.

       3.   Some revenue from accreditation fees, approximately $100,000. Some registrars voluntarily paying amounts equivalent to the $1/domain fee.

       4.   Have secured loans. Target is $2 million.

       5.   Total revenue is $1.87 million. Disbursements of $800,000 for prior year to bring accounts current. Anticipate having paid $250,000 of invoices by end of month. Projected cash balance $37,000 at end of month. Expect bills to total $250,000 at end of month.

       6.   So, watching expenses in every way possible. Continuing to benefit from willingness of creditors to wait.

       7.   Long-term, hoping for a more stable funding mechanism.

VII.   Governmental Advisory Committee, Paul Twomey

   A.   Representatives of 28 national governments and economies.

   B.   Communique [link in HTML] Recommendations

   C.   Dyson: GAC gives advice, but doesn't tell ICANN what to do.

VIII.   Presentation from Jun Murai, Chair of Root Server System Advisory Committee

IX.   Address Supporting Organization Formation

   A.   Presentation

   B.   Kraaijenbrink Report on ASO proposal

   C.   John Montjoy, CIX: The proposal from Kraaijenbrink, if adopted, resolves the conflicts between our two proposals.

   D.   Tarek Kamel: AFRINIC supports these proposals.

   E.   Abril i Abril: Support proposal and encourage board to approve it.

   F.   Hall: Wording is slightly different from what was discussed yesterday. Wants task force to review ASO structure after a year. Deficiency in proposal re voting procedures and want board to review voting procedures prior to them being used.

   G.   Hubbard: What is meant by "developing the objectives and proposing structures for future policies"?

       1.   Kraaijenbrink: The idea is to look at all policies relating to the interconnection of internet numbering with other communications infrastructure. We don't want the ad hoc group to compete with the RIRs.

   H.   Julian Dunayevich: An agreement for LACNIC has been signed. An interim board has been established. April 2000 will mark the election of the permanent board. We support the ASO MoU.

I.   Cosgrave: Important for telcoms and wireless to have a close input in policy matters relating to the ASO. RIRs do good work. Good input can come from the telcoms industry. Encourage Board to approve the resolutions.

   J.   Wilson: RIRs expect some form of review of the ASO activities and structure by the Board. ASO should have a chance to be in place before that review is launched. On the other hand, we would expect that the Board can review as it chooses. The proposal for the ad hoc committee should be quite separate from the ASO.

   K.   Kraaijenbrink: The reporting of the ad hoc group will be to ICANN Board, and ICANN as a whole will benefit from its work.

   L.   Francisco Gomez Alamillo (AHCIET): Wants to thank Hans for the text of the resolution , which captures the wishes of the Latin American region for LACNIC. We thank ASO for accepting this wish. I support in particular the proposal for the ad hoc group. Important to integrate telecoms operators. My group includes 61 companies in 21 countries in Latin America.

   M.   Ken Fockler: What was being disussed yesterday was a proposal for an evaluation process for all Sos. ICANN should do good management and review all parts of the organization. Today's is a new concept: a parallel group to look at issues that purportedly the ASO can't or shouldn't look at. We heard some good cautionary comments from John Klensin and others about the technical aspects of this. Think carefully about the wording, with attention to impact. The RIR Boards have not had a chance to discuss and provide help with this.

   N.   Kraaijenbrink: I made some small changes with input from John Klensin. Part of the idea is to make clear that this ad hoc group will not compete with the IETF. Its work will be in addition to all the activities that are ongoing. Proposed resolution recognizes fully the proposal of the RIRs for the ASO MoU. Passing the resolution falls within the mandate of the RIRs.

   O.   Dyson: Not supposed to be a second ASO.

   P.   Hubbard: We'd like time to discuss this resolution with the members of the community who are not here today.

   Q.   Mark Bernardo: Is the ad hoc group open to national regulators?

   R.   Dyson: Ad hoc group will be open to comment from anyone.

   S.   Holmes: Re Hubbard comment, we heard from CIX that the resolution addresses its concerns, and ours as well. Absent this resolution, we have two proposals for the ASO.

   T.   Roberts: Challenge for address community is deployment of Ipv6 - we all have a common stake in making it go well. IANA staff has suggested that there needs to be a clearer statement of allocation practices for addresses in the new environment. ICANN/IANA invites comments and looks forward to working with the community on this.

X.   Protocol Supporting Organization Formation: John Klensin

   A.   On schedule to have board members elected well in advance of November ICANN meeting.

XI.   Report on the DNSO

   A.   Names Council - Abril i Abril: NC does not yet have a chair. We are working to get our operations up and running - web site, mailing lists, etc. Have been working by teleconference. Elisabeth has been handling the technical arrangements. Our meetings have been webcast. Need to work on articulating the relationships between NC, GA, and working groups. WG-D is working on business plans and procedures for operations. Apologizes for failure to publish mailing list archive. Will be done soon.

   B.   GA - Quaynor:

       1.   Resolutions for which the GA Chair found consensus

   C.   Report on existing Constituencies: McLaughlin

       1.   Berlin Resolutions on Constituencies

          ·Provisional recognition of constituencies with a provisional Names Council. Outreach to build membership of constituencies. Final recommendation after amendments according to suggestion of board (Resolution 99.32).

          ·ICANN staff finds constituency texts acceptable, but outreach still needs work in some cases.

       2.   DNSO Schedule

          ·Understand that Non-Commercial Constituency wants a longer provisional period in which to conduct outreach.

       3.   Geographic Diversity

          ·"… No Constituency may have more representatives on the NC than there are members of the Constituency."

          ·Board intends to use the "escape clause" (impracticability of geographic diversity) as necessary according to needs of particular constituencies.

          ·Use citizenship or residency to measure geography for purposes of diversity? Troublesome either way (examples). Comment requested - maybe some other technique preferable - but little comment received so far.

       4.   Berlin resolutions in section "The Directors then discussed whether an additional Constituency for individual domain name holders should be added to the initial seven Constituencies…"

          ·Has received a proposal from the Individual Domain Name Owners

       5.   Questions

          ·Cohen: Need a structure to facilitate continuity.

          ·Bush: Non-Commercial saw two problems. Geographic diversity, and the cost of participating in the process.

          ·Raul Echebarria: Need greater geographic diversity in decision-making. Must not favor those who have more money. Should not use the exception clause - if no representatives from a region, then outreach has been inadequate.

          ·McLaughlin: Know we need to make improvements to our communications - in particular, our website and public comments.

          ·Abril i Abril: Diversity is important in the process, but also in the outcome. Don't take the GAC recommendation regarding residence - they're concerned about sovereignty issues which isn't relevant to the Councils.

          ·Problem of election that results in representatives contrary to bylaws. What to do then? Dyson: If election is contrary to bylaws, then it has to be fixed. Fitzsimmons: Waivers won't be granted easily; serious work on geographic diversity will be required. Roberts: But do want to avoid severe hardship or inequitable outcome.

          ·One constituency has geographic diversity problems already. Two reps from one region. What to do? McLaughlin: That election was held before the resolution setting up these diversity policies. Puts you in a difficult position, but we'll work it out.

          ·Jennings: Need some process for reconsidering election process. Seems unwise to dispose of an election process that did indeed reflect the wishes of the constituency.

          ·McLaughlin: Constituency proposals should include application for a waiver of geographic diversity requirements if the constituency intends to ask for a waiver at any point.

          ·Internet must not widen the gap between rich and poor countries. It will naturally be easier to find interest in developed countries. Perhaps have an effort by a sort of ombudsman to represent interests of developing countries. Dyson: Will let you represent yourselves.

          ·Swinehart: Conversation is offensive because geographic diversity can be achieved. No exception.

          ·Zittrain: Read Lindsay's remote comment (in its entirety).

          ·McLaughlin: Ambiguity in bylaws (Section 3 of DNSO Constituencies). Criteria should not be "you're out, because you're already in another constituency." For non-commercials, perhaps this doesn't make so much sense.

          ·Echebarria: Lots of work since the Berlin meeting. Broad-based participation on public lists. Many organizations involved. All the diversity sometimes makes progress difficult. One tough issue was the interaction between large and small organizations; consensus was to give additional voting power to large organizations.

          ·Wilkinson: Not a member of the Non-Commercial Constituency, rather of GAC. But responsible for original text in Washington meeting of definition of membership scope of NC Constituency. Want to emphasize the importance of outreach, especially here.

          ·Shapiro, Markle Foundation: Approves of the NC Constituency. Want to broaden involvement of non-commercial interests in this process. Lunch tomorrow on the 20th floor. Funds available as necessary for creative strategies.

       6.   Teernstra

          ·Displayed slide 13 of presentation

          ·Have been getting more press recently.

          ·Working on outreach.

          ·Have heard worry from ICANN staff/board that perhaps IDNO does not represent concerns of individual domain name holders. Wondering re the source of this worry? Charter? Membership rules?

          ·Kraaijenbrink: At the start of defining constituencies, it was anticipated that the needs for individual DNSO constituency would depend on outcome of at-large membership structure.

          ·Parallel tracks. Disadvantage in postponing IDNO further. Don't want to anger IDNO membership.

          ·Dyson: Perhaps better to have a centralized outreach effort to individuals - not separate IDNO and At-Large Membership. And 120 people isn't all that many.

          ·Will get many more.

          ·Zittrain reads comments from Barry, Fausett, Lindsay, Langston, Nair in their entirety. All also displayed on screen in their entirety.

          ·Higgins: Have left out the people at the bottom - the actual users.

          ·Fitzsimmons: Difficult to say no to anyone. But voices will be heard.

          ·Crew: Want to see directors appointed by DNSO from the initially-recognized constituencies before going forward with any more.

          ·Roberts: Shouldn't force the decision.

          ·Zittrain reads comments from Schaefer, Froomkin in their entirety. Also displayed on screen in their entirety.

          ·Langenbach: Some people are concerned that individuals are not properly represented in ICANN. Afraid of having as many constituencies as people?

          ·Kent: Support Joop's proposition. At-large membership not adequate because not a constituency.

          ·Dyson: Inclined to defer the proposal (at least until LA) rather than to reject it.

XII.   SO and Initial At-Large Director Terms: Touton

   A.   [link http://www.icann.org/santiago/SO-director-term-amendment.htm and http://www.icann.org/santiago/initial-director-term-resolution.htm]

   B.   Presently SOs will have terms of 1, 2, and 3 years, starting October 1, 1998. Need to move that date back to be consistent with current timetable.

   C.   Dyson: Which directors to have to leave first?

       1.   Board decides.

   D.   Crew: Need geographic diversity.

   E.   Questions - None Asked

XIII.   Independent Review - Linda Wilson

   A.   History: Created at the end of march. Presented eleven principles at the Berlin meeting, requesting comment. Few comments received.

   B.   Final Report presented and summarized

   C.   Comments

       1.   Dyson: Hard to find qualified people to do this job?

       2.   Roberts: Agreed that we need to take action. Note that "overly literal application of timing recommended" could cause problems.

       3.   Amato: Only an advisory group. How much good will it do to those with grievances? Also, nomination process (Principles 2 and 4) lacks representation of membership. Principle 13 should include a conflict of interest policy. Principle 18 adds a new condition ("materially" affected) which seems too limiting. Principle 20 should more clearly specify the standard of what information is to be kept confidential. Principle 22 - concern re independence of panel since it gets paid by ICANN.

          ·Wilson: Language to be tuned later. Anxious to move forward with at-large membership. Want to involve at-large membership in the process once the membership is ready, but we can't wait for the membership to move forward on the IRP. Conflict of interest policy already covered by recommendations. "Materially" is necessary to assure that only those people who actually are affected can use the process. Keeps costs down and keeps process streamlined. Reconsideration requirement designed to provide more avenues of relief rather than more burden. Comments on fees would be welcomed.

          ·Zittrain read comment from Menge (US Small Business Administration) read in its entirety. Principle 21 also displayed. Response from McLaughlin: Can't dislocate authority from directors of corporation. Re removing IRP member, the IRP should develop own operating procedures since experts in this area and have an interest in gaining respect of the community.

          ·Why not require geographic diversity for IRP? Wilson: Place of training very important, and professional respect perhaps more important than geographic diversity in this area.

          ·Zittrain read comment from Auerbach and displayed it on screen. Wilson: Written text addresses these questions.

XIV.   At-Large Membership: McLaughlin

   A.  Santiago Membership information

   B.   Membership has taken lots of time - Membership Advisory Committee, Berkman Center Representation in Cyberspace. Thanks to all who worked on the topic.

   C.   In Berlin, Board adopted four principles

       1.   Members should be individuals, and only individuals should vote for at-large members.

       2.   Election should take place in stages.

       3.   Geographic diversity should apply to at-large directors.

       4.   Costs of membership should be borne by at-large members.

   D.   Staff recommends parity between at-large and SO members.

   E.   Staff Report

       1.   An At-Large Council to supervise the process, conduct outreach, verify integrity of voting pool, watch for fraud.

       2.   Sunrise provision - only use At-Large Membership if it meets some basic criteria. Staff recommend that 5000 members required for an electorate to be valid. Perhaps recruit members from other organizations with similar focus.

       3.   Membership Costs - perhaps for the initial election membership should be free to members. But where would the money come from? A foundation? Markle? Perhaps others should be approached also?

       4.   Questions: Should At-Large Membership include anything other than elections? Does the membership computer system need to be designed to handle financial transactions? Will anti-fraud verification be built into computer systems or handled manually? Others also, in the document.

       5.   Expected costs around $100,000 for staff (full-time but temporary), equipment, and services required.

       6.   Verification of membership - physical mailing addresses verified via a postal mailing.

   F.   Analysis:

       1.   More legalistic - need to have a membership that's non-statutory.

   G.   Crew: Do need to prevent membership from being statutory. But don't want to give the At-Large Membership rights that the SOs don't have. Perhaps a membership to choose At-Large Council to choose from among a pool of nominees.

   H.   Questions

       1.   Zittrain reads remote comments from Lowenhaupt, Rony in their entirety, also parts of Menge ("skip the fluff" instruction from board). All messages also displayed on screen in their entirety.

       2.   Aizu: Need to make sure US citizens don't have an unfair advantage as a result of the membership structure.

       3.   Amato: Lots of talk, no action. Concerned. Although we've met lots of times and even know each other's viewpoints, we haven't made any progress. Lots of interests not represented here; not fair to limit their rights until they arrive. Roberts: Have worked on this through good processes, lots of hard work. No more process now, rather we need to move forward.

       4.   Zittrain reads message from Auerbach in its entirety, also displayed on screen. Suggests using contacts from WHOIS database as a membership recruitment device.

       5.   Cosgrove: Want to encourage board. Will do everything we can to help board achieve membership of 5000.

       6.   Zittrain reads from Narra (also on screen). Suggests brochure or information pamphlet of some kind, with online version linked in also.

       7.   Abril i Abril: Greg's proposal is preferable because it has more structure. Statutory versus non-statutory distinction - California law, "far from home." Don't want to hear about it.

       8.   Zittrain reads from Auerbach (also on screen). Worry that sunrise provision might create a chicken-and-egg problem. Also maybe other parts of ICANN need minimum participation requirements.

       9.   Teernstra: How to recruit first 5000 members? McLaughlin: Recruit on lists, ask other organizations for help. But probably not "spam" the WHOIS database. Some conceptual work has been done - need individual members, not organizations. Now time to work on recruitment. Crew & Dyson: Redundancy is good, want lots of ways of recruiting, many techniques of recruitment.

       10.   Geschko: Membership threshold is attainable with hard work. No need for delay. So top priority is resolving the California problem. McLaughlin: Worry is that California corporation law gives a right to members that is a bad idea.

       11.   Zittrain reads comment from Barry in its entirety and it is displayed on screen.

       12.   Harris: Digital vote signing? $11 per individual.

       13.   Zittrain reads from Rony and message is displayed on screen. Should avoid the intermediation Crew proposes. Crew: Misunderstanding of proposal. I suggest At-Large Electorate elect At-Large Council which chooses At-Large Board.

       14.   McLaughlin: Derivative actions really are a very serious worry. Have to deal with this. (Don't need right to derivative action because anyone can bring suit, and there's the IRP.) But outside of "box of statutory membership," lots more flexibility re topics including but going far beyond derivative actions.

       15.   Remote comment: Chizmarik. At-Large Directors should directly choose the At-Large Membership. Read by Zittrain, displayed on screen.

       16.   Stubbs: ISPs communicate with each other and with members. Could prepare a public service announcement to send to end users. Could reach a lot of members that way, complete with diversity.

       17.   Zittrain summarizes Lowenhaupt (because long message and has submitted messages already). Displayed in full on screen. Suggests outreach mechanisms, but opposes automatic membership.

       18.   McLaughlin: At-Large Membership could handle outreach.

       19.   Zittrain summarizes from Crocker and Nair (due to time constraints). Also displayed on screen. Roberts responds to concern of fraud: A black hole, can take as much effort & resources as you give it. Have to draw the line somewhere.

XV.   Geographic Diversity of At-Large Board Members: McLaughlin

   A.   Proposal: Tell SOs to elect three members from three different regions. Then one At-Large Director to be elected from each of the five regions, plus four Geographic At-Large Members elected by all regions together.

   B.   Could do something similar for NC: Ten of the 18 members must reflect two from each region, then eight at-large. Or five regions each choosing three and three more global.

   C.   Dyson: What are alternatives?

       1.   Everyone votes for everyone, but choose candidates who got fewer votes as necessary in order to guarantee one director per region.

       2.   No guarantee of geographic diversity.

XVI.   Uniform Dispute Resolution Policy: Touton

   A.   Staff Report

   B.   White Paper asked WIPO to prepare a report, reflecting public input, on the intersection of the domain name system and IP rights. At Berlin meeting, ICANN board noted that competition in .com, .org, and .net registration raised risks of non-uniformity in dispute resolution policies among registrars in those gTLDs. ICANN asked registrars to determine a uniform dispute resolution policy that they'd adopt on a voluntary basis. DNSO made consensus recommendation to ICANN board - five parts.

   C.   Cohen: Subject was discussed at length yesterday. Also by Working Group A at the request of the NC. ICANN staff report is an excellent piece of work.

   D.   Rodin (AOL, Register.com)

       1.   Feel WIPO's report represents a majority rough consensus. Tried to balance needs of trademark holders, registrars, and Internet users. Tried to combine elements of NSI dispute resolution policy and WIPO report. Current draft represents consensus among all the participants in the registrars' voluntary process. Uniform policy provides certainty for registrars.

       2.   Objectives of policy included ease from perspective of domain name holders; ease of administration with limited resources; fast and low-cost way of resolving cyber-squatting disputes; protect registrars from third-party disputes; balance interests of IP owners with those of individuals.

       3.   Policy to take effect through contracts between registrars and their registrants.

       4.   Cyber-squatting - precise definition included. Representative from WIPO can clarify.

       5.   Providers to be certified to resolve disputes.

   E.   Touton: Staff suggests using registrars' policies as a baseline. Have come up with a policy that is better-suited to actual implementation by registrars. Thanks to Network Solutions for participating in the drafting process despite other obvious areas of contention.

   F.   Zittrain excerpts comments from Rony, Auerbach. (Net down, so couldn't be displayed on screen.) Rony says if there's time to do it over, better to take the time to do it right. Auerbach says requests for comment should have been sent to those holding domain names via the WHOIS database.

   G.   Palage: Eleven registrars have signed on already. Registrar policy allows registrars to select dispute resolution provider that they will impose on their customers (unlike DNSO recommendation). Objective is to try to keep costs down.

       1.   Dyson: What about provisions limiting cost? Palage: OK.

   H.   Kleiman: Don't want to reopen yesterday's debate, but want to let board know the position of Non-Commercial Constituency. WIPO not so representative of general consensus according to some (incl. Froomkin). Still need a better definition of cybersquatting, for example. Dyson: Want a drafting committee that reflects this position. Not here to fix past process, rather to repair omissions if necessary.

I.   Thrush: Worried about end-run around the process. ccTLDs have given recommendations based on WG-A report. Today's discussions focus on staff report which we haven't had a chance to review. No recognition of ccTLD resolution or comments. We've had no opportunity to participate in this process. Dyson: You can send specific comments to Touton or to the drafting committee.

   J.   Chambers of Commerce have dispute resolution systems that have been working for years. Just an idea…

   K.   Zittrain excerpted comment from Barry, Schaefer, also displayed on screen in full.

   L.   Why arbitration rather than reconciliation or some other less confrontational process?

   M.   Davidson: What's the process going to be for the working group to get the input of the non-commercial, public interest, etc. communities?

XVII.   Open Comment Period

   A.   NIC Chile has a highly developed arbitration system which is administering through the domain registrars.

   B.   Humberto: Two systems of law in the world. We're Romanistic here, but the arbitration system that will be applied may be foreign to us.

       1.   Touton: Choice of law issues are tricky. If disputants in the same country, it's easy to say what law applies. Otherwise, harder.

   C.   Comments excerpted by Zittrain: Narra (re recent Avery case), Langston (re what is fair), Barry (also re fair). Also displayed on screen in full.

   D.   Abril i Abril: Deep frustration that testbed registrar process has not been discussed either in GA or this meeting.

       1.   Sims: Anticipate that all accredited testbed registrars will be able to get into the SRS. Ongoing discussions have been productive, not yet finished, no guarantees. ICANN objective is to finish as quickly as possible.

   E.   Abril i Abril: Questions to NSI: What about WHOIS? internic.net?

   F.   Mark L: Concerned by electoral system in which money can buy the election. Fundamental to establish that members have paid their own way. Moral hazard is disproportion between interests of members and costs of influencing the election.

   G.   Ramish: Fear is that if a few cases go before panels and have good lawyers on the trademark owners' side, could have bad precedents that affect future cases.

XVIII.   Coming up: Board Meeting Tomorrow Open to Public Observation

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CONTACT INFORMATION

For additional technical information, please contact:

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Berkman Center for Internet & Society at Harvard Law School