Board Activities and Meetings
Approved Resolutions | Regular Meeting of the ICANN Board – Open Session 3 November 2019
- Main Agenda:
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Main Agenda:
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Consideration of Reconsideration Request 19-2
Whereas, Namecheap Inc. (Requestor) filed a reconsideration request (Request 19-2) challenging ICANN organization's 2019 renewal of the Registry Agreements (RAs) with Public Interest Registry (PIR) and Afilias Limited (Afilias) for the .ORG and .INFO generic top-level domains (gTLDs), respectively (collectively, .ORG/.INFO Renewed RAs), insofar as the renewals eliminated "the historic price caps" on domain name registration fees for .ORG and .INFO.1
Whereas, the Requestor claims that ICANN org's "decision to ignore public comments to keep price caps in legacy gTLDs is contrary to ICANN's Commitments and Core Values, and ICANN should reverse this decision for the public good."2 The Requestor also asserts that ICANN Staff failed to consider material information concerning the nature of .ORG and security issues with new gTLDs when it executed the .ORG/.INFO Renewed RAs.3
Whereas, pursuant to Article 4, Section 4.2(l), the Ombudsman accepted Request 19-2 for consideration, and, after investigating, concluded that "the CEO and Staff acted within the scope of the powers given them by the Board," and that "no rules or duties of corporate governance were violated (including the ICANN Bylaws)."4
Whereas, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests and make recommendations to the Board on the merits of those Requests. (See Bylaws, Art. 4, § 4.2(e).) However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.5
Whereas, the majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-2 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-2. Therefore, the Board is considering Request 19-2 in lieu of a Recommendation by the BAMC.
Whereas, the Board has carefully considered the merits of Request 19-2 and all relevant materials and concludes that ICANN org's execution of the .ORG/.INFO Renewed RAs did not contradict ICANN's Bylaws, policies, or procedures, and that ICANN Staff did not fail to consider material information in executing the Agreements. Accordingly, the Board proposes denying Request 19-2.
Resolved (2019.11.03.01), the Board adopts the Proposed Determination on Reconsideration Request 19-2.
Rationale for Resolution 2019.11.03.01
The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e). However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.6 The majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-2 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-2. Therefore, the Board has considered and issues the Proposed Determination in lieu of a Recommendation by the BAMC.
The Board has carefully considered the merits of Request 19-2 and all relevant materials. For the reasons set forth in the Proposed Determination, which are incorporated here, the Board concludes that ICANN org's execution of the .ORG/.INFO Renewed RAs did not contradict ICANN's Bylaws, policies, or procedures, and that ICANN Staff did not fail to consider material information in executing the Agreements. Accordingly, the Board proposes denying Request 19-2.
Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the Board's Proposed Determination on Request 19-2 to submit a rebuttal. Following the rebuttal period, the Board will issue a final determination on Request 19-2 in accordance with Article 4, Section 4.2(r) of the Bylaws.
This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures. This accountability includes having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. This action should have no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
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Consideration of Reconsideration Request 19-3
Whereas, Electronic Frontier Foundation (Requestor) filed a reconsideration request (Request 19-3) challenging ICANN organization's renewal of the Registry Agreement (RA) with Public Interest Registry (PIR) for the .ORG generic top-level domain (gTLD) (the .ORG Renewed RA), insofar as the renewal permits PIR to, "'at its election, implement additional protections of the legal rights of third parties,' unilaterally and without further consultation with existing .ORG registrants or the ICANN community" and applies the Uniform Rapid Suspension (URS) rules to .ORG registrants (collectively, the URS Rights Protection Mechanisms or URS RPMs).7 The Requestor also seeks reconsideration of an alleged Board inaction, insofar as the ICANN Board of Directors did not vote on the .ORG Renewed RA.
Whereas, the Requestor claims that ICANN org's inclusion of the RPMs in the .ORG Renewed RA "run[s] contrary to ICANN's bylaws."8 The Requestor also claims that the Board's inaction (i.e., that the Board did not vote on the .ORG Renewed RA) was based on the Board's consideration of inaccurate relevant information and the Board's failure to consider material information.9
Whereas, pursuant to Article 4, Section 4.2(l), the Ombudsman accepted Request 19-3 for consideration, and, after investigating, concluded that the selection of terms to include in RAs is "ICANN org's choice to make as directed by the Board—and as such, the actions of the Staff, acting with the authority vested in the CEO by the Bylaws and the Board, do not merit any kind of recommendation from me to the BAMC or the Board under [Request] 19-3."10 The Ombudsman further concluded that "[i]n action or inaction, the Board did nothing improper in deciding to stay the course, so far as I can see. It heard the Community, it read the public comments (at the very least the comprehensive Staff Report summary), and in the end, it decided that the renewal terms for the Legacy gTLDs (including .org) were acceptable."11
Whereas, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests and make recommendations to the Board on the merits of those Requests. (See Bylaws, Art. 4, § 4.2(e).) However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.12
Whereas, the majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board is considering Request 19-3 in lieu of a Recommendation by the BAMC.
Whereas, the Board has carefully considered the merits of Request 19-3 and all relevant materials and concludes that reconsideration is not warranted because ICANN org's execution of the .ORG Renewed RA was consistent with ICANN's Bylaws, policies, and procedures. Further, the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. Accordingly, the Board proposes denying Request 19-3.
Resolved (2019.11.03.02), the Board adopts the Proposed Determination on Reconsideration Request 19-3.
Rationale for Resolution 2019.11.03.02
The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e). However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.13 The majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board has considered and issues the Proposed Determination in lieu of a Recommendation by the BAMC.
The Board has carefully considered the merits of Request 19-3 and all relevant materials. For the reasons set forth in the Proposed Determination, which are incorporated here, the Board concludes that reconsideration is not warranted because ICANN org's execution of the .ORG Renewed RA was consistent with ICANN's Bylaws, policies, and procedures. Further, the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. Accordingly, the Board proposes denying Request 19-3.
Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the Board's Proposed Determination on Request 19-3 to submit a rebuttal. Following the rebuttal period, the Board will issue a final determination on Request 19-3 in accordance with Article 4, Section 4.2(r) of the Bylaws.
This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures. This accountability includes having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. This action should have no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
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Independent Review Process Implementation Oversight Team Recomposition
Whereas, the Independent Review Process (IRP) is an accountability mechanism established by the ICANN Bylaws that allows for third party review of ICANN Board or staff actions (or inactions) alleged by an affected party to be inconsistent with ICANN's Articles of Incorporation or Bylaws.
Whereas, the Bylaws specify that IRP Implementation Oversight Team (IRP-IOT) is responsible for, among other things, updating the IRP supplementary rules of procedure for Board consideration and approval, and developing rules for the Cooperative Engagement Process.
Whereas, the Bylaws further specify that an IRP-IOT shall be "established in consultation with the Supporting Organizations [SOs] and Advisory Committees [ACs]" and that the IRP-IOT shall be "comprised of members of the global Internet community." (See Bylaws, Art. 4, § 4.3(n).)
Whereas, the IRP-IOT was formed during CCWG-Accountability Work Stream 1 (WS1) as a group envisioned to include seven volunteers of experts in IRPs, arbitration or alternative dispute resolution mechanisms.
Whereas, the IRP-IOT had difficulties in achieving active participation or quorum with its current membership at regularly scheduled meetings.
Whereas, the Board Accountability Mechanisms Committee (BAMC), in its oversight role of ICANN's accountability mechanisms, has undertaken to repopulate the IRP-IOT with members who have the substantive qualifications and time availability to help the IOT conclude its work in a timely fashion.
Whereas, at the request of the BAMC, ICANN organization issued a Call for Expressions of Interest and conducted community outreach seeking new volunteers to join the IRP-IOT.
Whereas, the BAMC specified that volunteers should have the necessary legal or judicial skills and experience in IRPs, arbitrations, or other alternate dispute resolution mechanisms, specific familiarity with ICANN's accountability mechanisms, the time and availability to attend at least a one hour call each week to participate on IRP-IOT telephonic meetings, and sufficient availability to contribute to the work online.
Whereas, the BAMC has confirmed with the current members of the IRP-IOT who have actively participated in the IRP-IOT since January 2018 that they would like to continue serving on the IRP-IOT and that they have the time and availability to attend at least a one hour call each week to participate on IRP-IOT telephonic meetings, as well as sufficient availability to contribute to the work online.
Resolved (2019.11.03.03), the Board delegates to the BAMC the authority in this instance to select the members according to the documentation submitted to the Board, and the Board directs the BAMC to provide a proposal to the Board for the future process of finalizing changes to the composition of the IRP-IOT, if needed.
Resolved (2019.11.03.04), the Board acknowledges the work of the BAMC in recomposing the IRP-IOT and directs the BAMC to provide regular updates to the Board on the status of the work of the recomposed IRP-IOT.
Resolved (2019.11.03.05), the Board thanks the SOs and ACs for their work in consulting with the BAMC on the recomposition of the IRP-IOT and hopes that the SOs and ACs will remain engaged with the effort. The Board further thanks all candidates who submitted expressions of interest to join the IRP-IOT. The Board further thanks all members of the IRP-IOT for their efforts to date.
Rationale for Resolutions 2019.11.03.03 – 2019.11.03.05
The Independent Review Process (IRP) is an accountability mechanism provided by the ICANN Bylaws that allows for third party review of ICANN Board or staff actions (or inactions) alleged by an affected party to be inconsistent with ICANN's Articles of Incorporation or Bylaws. Per the Bylaws, an IRP Implementation Oversight Team (IRP-IOT) is responsible for, among other things, updating the IRP Supplementary Procedures for Board approval, and developing rules for the Cooperative Engagement Process (CEP). The Board is taking this action today because it is committed to ensuring that the work of the IRP-IOT is completed in a timely and efficient manner to bring the IRP in line with the updated Bylaws.
The IRP-IOT's scope of work involves drafting the Updated Supplementary Procedures for Board consideration and approval, developing rules for the CEP, making recommendations of trainings for the IRP standing panel, and developing the rules governing appeals from IRP panel decisions.14 The current IRP-IOT was formed in late 2015 within CCWG-ACCT WS1 as a group envisioned to include seven volunteers of experts in the IRPs, arbitration or alternative dispute resolution mechanisms, as well as participants from ICANN's legal department.15 Over the past several years, the IRP-IOT has experienced difficulties in achieving active participation and quorum from the current membership at regularly scheduled meetings.
The participation level of the IRP-IOT needs to improve dramatically in order to complete the remaining work in the estimated time frame. The Board Accountability Mechanisms Committee (BAMC), as the Board Committee with oversight responsibility of ICANN's accountability mechanisms, identified that as part of re-composing the IRP-IOT and supporting the important role that the IRP has within ICANN's overall accountability, it is important to focus on bringing the correct mix of skills to the group to complete the work. The BAMC identified those as specific legal or judicial skills and experience in disputes such as IRPs, arbitrations, or other alternate dispute resolution mechanisms, as well as specific familiarity with ICANN's accountability mechanisms. In terms of time commitment, the BAMC asked for volunteers who have the time and availability to attend at least a one hour call each week to participate on IRP-IOT telephonic meetings, as well as sufficient availability to contribute to the work online.
Pursuant to the Bylaws requirement that an IRP-IOT be "established in consultation with the Supporting Organizations [SOs] and Advisory Committees [ACs]", the process to recompose the IRP-IOT was done in consultation with the SOs and ACs. The BAMC and ICANN org conducted several community outreach efforts, including an issuance of a Call for Expressions of Interest through the Community Leadership Digest in April 2019 and a letter from the BAMC Chair to the SO/AC leadership in which the BAMC Chair asked for the help of the SO/AC leadership in the recomposition process. (See Letter from León Sanchez to SO/AC leadership dated 26 June 2019). The BAMC encouraged the SO/ACs, if interested, to use their own selection processes to provide inputs to the BAMC on candidates. If invited, representatives of ICANN org were available for discussion on the issue.
Following community outreach and a Call for Expressions of Interest, the BAMC then considered whether each of the volunteers that responded to the call for expressions of interest satisfied the substantive qualifications and time requirements sufficient to serve on the IRP-IOT. Some of the volunteers were presented to the BAMC with endorsement from the Generic Names Supporting Organization Council.
With respect to those IRP-IOT members that have actively participated in the IRP-IOT since January 2018, the BAMC, through ICANN org, sought confirmation from each as to whether they wished to continue serving on the IRP-IOT and that they have the time and availability to attend at least a one hour call each week to participate on IRP-IOT telephonic meetings, as well as sufficient availability to contribute to the work online. The full composition from the BAMC also continues the participation from ICANN org's legal department, which brings a practical and important view of how the proposals out of the IRP align in practice as well as potential implications on the ICANN Bylaws and resourcing issues. As the ICANN Board has responsibility to make sure that the IRP, envisioned as the "constitutional court" of ICANN, operates properly under the Bylaws, the BAMC also recommends that two ICANN Board members are formally identified as members of the IRP-IOT and actively participate in this work. The Board notes that other members of the reconstituted IRP-IOT have been, or anticipate to be, involved as claimants against ICANN in IRPs, and the Board notes that their experience is also extremely valuable when finalizing the procedures and other aspects of an IRP that is fit for purpose. The Board further notes that the BAMC may add new members to the IRP-IOT as appropriate should the need to do so arise, and provided that the new members meet the substantive and time requirements for IRP-IOT membership. The Board affirms the BAMC's work in recomposing the IRP-IOT and directs the BAMC to provide regular updates to the Board on the status of the work of the recomposed IRP-IOT.
The BAMC has also recommended that the recomposed IRP-IOT include a leadership refresh as part of reinvigorating and renewing the cadence of the work of the IRP-IOT. The Board agrees with BAMC's recommendation and thanks the IRP-IOT leadership for the work to date.
The Board thanks the SOs and ACs for their work in identifying additional members the IRP-IOT and hopes that the SOs and ACs will remain engaged with the effort. The Board further thanks all candidates who submitted expressions of interest to join the IRP-IOT. The Board further thanks all members of the IRP-IOT for their efforts to date.
This action is within ICANN's Mission and is in the public interest as part of implementing and achieving the enhanced outcomes of the IRP in accordance with the recommendations of the community. This action is also within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request third-party review of that action or inaction by the Board.
Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
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Ombudsman FY19 At-Risk payment
Whereas, the Compensation Committee recommended that the Board approve payment to the Ombudsman of his FY19 at-risk compensation.
Resolved (2019.11.03.06), the Board hereby approves a payment to the Ombudsman of his FY19 at-risk compensation component.
Resolved (2019.11.03.07), a portion of this action by the Board shall remain confidential as an "action relating to personnel or employment matters", pursuant to Article 3, section 3.5b of the ICANN Bylaws.
Rationale for Resolutions 2019.11.03.06 – 2019.11.03.07
Annually the Ombudsman has an opportunity to earn a portion of his compensation based on specific performance goals set by the Board, through the Compensation Committee. This not only provides incentive for the Ombudsman to perform above and beyond his regular duties, but also leads to regular touch points between the Ombudsman and Board members during the year to help ensure that the Ombudsman is achieving his goals and serving the needs of the ICANN community.
Evaluation of the Ombudsman's objectives results from both the Ombudsman self-assessment, as well as review by the Compensation Committee, which lead to a recommendation to the Board with which the Board agrees.
Evaluating the Ombudsman's annual performance objectives is in furtherance of the goals and mission of ICANN and helps increase the Ombudsman's service to the ICANN community, which is in the public interest.
While there is a fiscal impact from the results of the scoring, that impact was already accounted for in the FY19 budget. This action will have no impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative Function that does not require public comment.
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AOB
No resolutions taken.
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Published on 3 November 2019
1 Request 19-2, § 3, at Pg. 2.
2 Id. at § 3.
3 Id.
4 https://www.icann.org/en/system/files/files/reconsideration-19-2-namecheap-evaluation-icann-ombudsman-request-07sep19-en.pdf.
5 See BAMC Charter https://www.icann.org/resources/pages/charter-bamc-2017-11-02-en.
6 See id.
7 Request 19-3, § 3, at Pg. 2.
8 Id., § 8, at Pg. 5.
9 Id., § 8, at Pgs. 8-9.
10 Evaluation by the ICANN Ombudsman of Request for Reconsideration 19-3, at Pg. 3, 7 September 2019, https://www.icann.org/en/system/files/files/reconsideration-19-3-electronic-frontier-evaluation-icann-ombudsman-request-07sep19-en.pdf.
11 Id., at Pg. 6.
12 See BAMC Charter https://www.icann.org/resources/pages/charter-bamc-2017-11-02-en.
13 See id.
14 See Bylaws, Art. 4, § 4.3(j)(i) and 4.3(j)(iii) (https://www.icann.org/resources/pages/governance/bylaws-en/#article4).