[At-Large] Board Meeting Minutes

[Danny Younger]

Board Meeting Minutes have been posted:
http://www.icann.org/minutes/prelim-report-27mar08.htm

The section regarding the ALAC Letter to the Board is
reproduced below:

The Board moved to a discussion raised by Wendy
Seltzer relating to "Front-Running", which had been
provided to the Board by the ALAC seeking an emergency
policy: The key parts of the letter reads as follows: 

While we are aware that you have been monitoring the
public outrage in response to registrar activities
that have been variously described as "front-running"
and/or "domain reservation" or "cart-hold" or
"cart-reserve" activities, we are of the view that the
obligation to safeguard the operational stability of
Registrar Services now requires the immediate
temporary establishment of a consensus policy
curtailing such practices to be taken in accordance
with the board's authority under the provisions set
out in section 4.3.4 of the Registrar Accreditation
Agreement, that states:

"A specification or policy established by the ICANN
Board of Directors on a temporary basis, without a
prior recommendation by the council of an ICANN
Supporting Organization, shall also be considered to
be a Consensus Policy if adopted by the ICANN Board of
Directors by a vote of at least two-thirds of its
members, so long as the Board reasonably determines
that immediate temporary establishment of a
specification or policy on the subject is necessary to
maintain the operational stability of Registrar
Services, Registry Services, the DNS, or the Internet,
and that the proposed specification or policy is as
narrowly tailored as feasible to achieve those
objectives."

Wendy Seltzer spoke to the ALAC front running position
and recommendation to the Board, pointing to the
Registrar Accreditation Agreement sec 4.3.4: the Board
can take emergency action to make "consensus policy,"
which is then sent out to community and affirmed or
rejected. We don't need to take wait for PDP to
address issues critical to operational stability. With
domain name reservation, someone looks for a domain
name on a site unaware that it has been reserved and
can't be obtained somewhere else. This is a detriment
to user confidence in the registrar system, results in
non-uniform behavior in the system and the loopholes
in the AGP harm registrants trying to obtain domain
names. ALAC has requested, in a document that has
consensus among the regional at-large organizations
and at-large structures, that the Board take emergency
action. 

The Chair asked what emergency action is being
requested. Wendy Seltzer advised that it is to stop
registrars from using their inside knowledge of the
use of the registration system to reserve names. 

Bruce Tonkin stated that he is a registrar and does
not want to comment for or against an action; however,
he did question whether the request for emergency
action like this, should go through the GNSO for
action as the entity responsible for doing policy work
on this issue. He considered the GNSO would be the
more appropriate body to raise this through. 

Wendy Seltzer noted that the GNSO has been looking at
this issue for a long time and it's clear there are
different viewpoints from differing parties, so ALAC
is asking the Board from a public interest perspective
to take more rapid action. 

Bruce Tonkin responded that what she was really saying
was that the current policy process was not working. 

The Chair noted that he thought the argument should
come from the other way. We should understand
agreement to the position is possible and then adopt
it. 

Rita Rodin, indicated that in looking at the issue
strictly from a process perspective, the ALAC was
asking the Board to take emergency action. She wanted
the General Counsel's opinion, but noted that in this
regard, if the Board was going to refer the issue to
the GNSO, she believed that it should note that there
was not going to be any such emergency action taken,
because the conduct in question did not jeopardize the
stability and security of the DNS. 

The Chair noted that there is a tendency to bring
matters into the stability and security mandate. There
is a paper on this prepared by the SSAC, and the Board
does need to get some sort of community support for
the position. He asked whether the Board could
encourage GNSO to do something about the concerns
being raised. 

Wendy Seltzer indicated that argument would work for
GNSO improvements, but that she thought it was clear
that the current GNSO is structurally incapable of
taking action in lots of places, such as this, where
ALAC is interested in seeing action. 

The Chair whether the GNSO is acting on the broader
issue. 

Denise Michel advised that the GNSO has not been
specifically asked to address domain name "front
running" and to be clear it is not clear whether the
practice has been confirmed. The GNSO has undertaken
work on domain tasting and more recently an issues
report on fast flux has been prepared. 

Wendy Seltzer responded that it has been seen: Network
Solutions "reserved" domains, and register.com is now
offering a "hold," so it can't be argued that evidence
does not exist. The ALAC is responding to that
evidence. As an advisory committee to the Board, ALAC
is bringing this to the Board thinking this is the
most expeditious and fair way to have the matter
heard. 

The Chair indicated that if there is evidence of the
practice, the Board should refer the matter to the
GNSO Council and ask them to report on what action
they think should be taken. 

Dennis Jennings agreed, and indicated that he
personally he finds the practice of holding names for
individual registrars customers unacceptable and in
violation of trust and that should become an input to
the discussion. Jean-Jacques Subrenat agreed. 

The Chair considered this is why action should be
taken. 

Rita Rodin agreed, but would like confirmation from
John Jeffrey, if it is necessary for the Board to take
a vote on this issue in response to the ALAC request.
The Chair suggested the Board reference the letter and
the SSAC paper and forward it to the GNSO for action. 

John Jeffrey advised that he is not aware of a bylaws
mandated process requirement that requires the board
to immediately take a vote because they are asked by
an advisory committee for an emergency policy. He
indicated that to his knowledge there is not a defined
process for acting on an emergency process request,
but he agreed to look into any process requirements
and prepare a paper for the Board. 

Susan Crawford indicated in response to earlier
comments that the matter should be forwarded to the
GNSO, that she considered it an abdication of the
Board's responsibilities to refer a request for an
emergency policy to a supporting organization for
policy development, and that the board should take up
the issue when requested. 

Bruce Tonkin considered the right thing to do, if not
establishing precedence on stability and security,
SSAC could advise the Board that action needs to be
taken with the timeline for referring it to the GNSO
by June. He inquired whether it was really an
emergency and whether something needed to be done
quickly? He also asked does the GNSO want to do policy
development on this? Rather than waiting till June,
you could forward to the GNSO and by end of April to
get a response. 

The Chair did not think a completed process was
expected but asked what response is being sought.
Bruce Tonkin noted this is a different process to what
has been done in the past. ALAC is requesting
immediate action, and it is appropriate to ask the
GNSO for its view and go to constituencies to get
input and respond by the next GNSO meeting. 

The Chair suggested that the matter be referred to the
GNSO and request a response by April. 

Rita Rodin reiterated that she wanted to be clear on
how these matters should be handled, and agreed with
Susan. She agreed that John should ensure that there
are no defined processes on how to handle emergency
policy requests and get back to the Board. Rita
indicated that if there is a procedure for an advisory
committee to come to the Board and request emergency
action that, to me, means that the Board has to make a
decision. 

She elaborated that it is important to make sure we
paper this properly in that if we are saying to the
ALAC, "We think that we need to have the GNSO give us
information," in effect, what we're saying is we don't
think that this jeopardizes security and stability
right now, today, on March 27th, 28th, but we're going
to get input from the GNSO on an expedited basis and
get back to you. I do think if there is a process to
come to the board and request emergency action, we
have to say, we, the board, don't think it should
happen right now, but this is the process we're going
to follow to get answers to your questions. 

Bruce Tonkin agreed. The Chair also agreed with Rita's
assessment. 

The Chair asked if a resolution was needed. 

Steve Crocker noted that this action was triggered by
bad behavior by one or more registries and he sent a
note around expanding on this. He considered that if
the Board is making an emergency ruling, we ought to
include the rest of it, telling registrars that if
they know that the information's leaking out by some
registries, then they're obliged not to deal with
those registries. 

The Chair determined that emergency action is not
required today but the matter will be referred to the
GNSO for additional information or policy development
if necessary, but not an emergency action. 



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