After 10 months, ICANN board “promptly” publishes its own minutes

ICANN’s board of directors has approved a huge batch of its own meeting minutes, covering the period from July 15 last year to March 10 this year, raising questions about its commitment to timely transparency.

The board approved the minutes of its last 14 full-board meetings in one huge batch of 14 separate resolutions at its May 12 meeting, and they’ve all now been published on the ICANN web site, along with redacted briefing papers for said meetings.

The period includes decisions on planning for the next new gTLD round and Whois reform, the legal fight with Afilias over the contested .web gTLD, and apparently divisive discussions about the timing of a post-pandemic return to face-to-face meetings.

No explanation has been given for why it’s taken so long for these documents to appear, the timing of which appears to go against ICANN’s bylaws, which state that minutes are supposed to be approved and published “promptly”:

All minutes of meetings of the Board, the Advisory Committees and Supporting Organizations (and any councils thereof) shall be approved promptly by the originating body and provided to the ICANN Secretary (“Secretary”) for posting on the Website.

ICANN almost always published its board’s resolutions within a few days of approval, and a preliminary report — which also includes the number of votes yay or nay, without naming the directors — within a couple of weeks.

The minutes, which are published only after the board rubber-stamps them, typically include a further vote breakdown and a little bit of color on how the discussion went down.

In the newly published batch, some of the documents are somewhat illuminating, while others barely nudge the dimmer switch.

For example, the preliminary report for the July 15, 2021 meeting, published 11 days later, notes that three of the 16 voting directors rebelled on a resolution about making the October annual general meeting in Seattle a virtual-only event, but the just-published minutes name those directors and flesh out some of their reasons for dissenting.

It turns out the directors had a “robust discussion”, with some arguing that it would be safe to go ahead with a “hybrid” meeting comprising both face-to-face and remote participation options.

The dissenting directors were Ron da Silva, Avri Doria, and Ihab Osman, it turns out. Osman and da Silva had voted a similar way a year earlier.

Directors could not reasonably have been expected to know about the impact the Delta variant of Covid-19 would have on world health in the latter half of the year. It had been identified and named by scientists but had yet to spread to the extent it was making headlines.

But they were aware of concerns from the Asia-Pacific members of the community, worried that a hybrid meeting in Seattle would disadvantage those unable to attend due to pandemic travel restrictions. This appears to have been raised during the discussion:

Some Board members expressed desire to see more work done to have ICANN72 as a hybrid meeting. They noted that Seattle has protocols in place to ensure the health and safety of ICANN staff and the community, and ICANN should use this opportunity to begin to return to its normal meeting standards as much as possible. Others noted that the concerns about travel inequities or restrictions for certain parts of the world should not prevent moving forward with an in-person component for ICANN72 because such inequities and restrictions exist with or without the pandemic.

The return to in-person meetings was discussed again in November, when the board decided to junk plans, secured by the dissenting directors in July, for a hybrid meeting in San Juan, Puerto Rico.

Ron da Silva had left the board by this point, but the new minutes show that Doria and Osman were joined by León Sánchez in advocating for a hybrid meeting with an in-person component.

While the July minutes contains a few paragraphs summarizing discussions, the November minutes simply notes that the board “reviewed the proposed resolution and rationale to confirm that it reflects the Board’s discussion and edits”.

And that’s pretty typical for most of the documents published this week — time and again the substantive discussion appears to have either happened off-camera, during non-minuted sessions of the board at unspecified times, or was simply not minuted.

Interested in the talks leading to the approval of the new gTLDs Operational Design Phase? The minutes shed no light.

Interested in how the board reacted to ICANN losing its Independent Review Process case with Afilias about .web? The minutes merely note that the resolution was approved “after discussion”.

There’s also a glaring hole in one set of minutes, raising questions about whether these documents are a reliable record of what happened at all.

We know for a fact that on September 12 the ICANN board approved a resolution naming the new chair and vice chair of its influential Nominating Committee, only to reconvene two weeks later to scrap that decision and name a different chair instead.

But if you read the September 12 minutes, you’ll find no record of NomCom even being discussed, let alone a resolution being passed appointing a chair.

The newly published batch of documents cover several resolutions related to executive pay, but none of the minutes contain the same level of transparency as ICANN displayed in February 2021, when it revealed that three directors voted against CEO Göran Marby’s pay rise.

In terms of transparency, that now appears to fully confirmed as an isolated incident.

ICANN highlights “not getting things done” risk

ICANN’s board of directors addressed a number of existential threats at its latest workshop, including the perception that it’s simply “not getting things done.”

Chair Maarten Botterman disclosed the discussions, which took place at the end of April, in a blog post Friday.

He described how the board broke up into four “brainstorming” groups, which returned with strikingly similar views on the risks ICANN faces.

There’s a worry that the lack of in-person meetings due to the pandemic is harming ICANN’s ability to work and that various unspecified “geopolitical initiatives” may get in the way of the mission. He added:

Moreover, we recognized the risk of ICANN being seen as “not getting things done.” On the opportunity side is the broad awareness within ICANN that we need to continue to deliver on our mission in the face of new challenges, as demonstrated by the prioritization efforts of the Board, Org, and Community, and our ability to adapt to changing circumstances.

The Org and the community have been faced with what I would call organizational inertia in recent months and years.

I wrote a few months ago about how ICANN hadn’t implemented a policy since December 2016 — more than five years previously.

Major issues facing the industry seem to be either stuck in endless feedback loops of community arguments or interminable Org preparatory work.

The SSAD, pitched as a solution to the problem of Whois access, appears doomed to be scrapped entirely or approved in a much-reduced form that many believe will not address the problem of identifying registrants in a post-GDPR world.

And even if the stripped-back SSAD Light gets approved, there’s a good chance this will add many months to the runway of the next round of new gTLDs, which itself is at an impasse because the Governmental Advisory Committee and the the GNSO cannot agree on whether to allow closed generics.

As it stands, 10 years after the last application round new gTLD policy is in the Operational Design Phase within Org, and not expected to come before the board until late this year. Much of what has been disclosed about the ODP to date looks a lot like wheel-spinning.

SSAD: Whois privacy-busting white elephant to be shelved

ICANN is likely to put SSAD, the proposed system for handling requests for private Whois data, on the back-burner in favor of a simplified, and far less expensive, temporary fix.

But now ICANN is warning that even the temporary fix might be problematic, potentially delaying unrelated work on the next new gTLD round for months.

The GNSO Council has asked the ICANN board of directors that “consideration of the SSAD recommendations be paused” in favor of what it calls “SSAD Light”.

SSAD, for Standardized System for Access and Disclosure, is a sprawling, multifaceted proposal that would create a system whereby trademark owners, for example, can request Whois data from registrars.

After months of studying the proposal, ICANN decided it could cost as much as $27 million to build and might not go live before 2028.

There’s apparently substantial resistance within ICANN Org to committing to such a project, so the GNSO put together a small team of experts to figure out whether something simpler might be a better idea.

They came up with SSAD Light, which would be basically a stripped-down ticketing system for data requests designed in part to gauge potential uptake and get a better idea of what a full SSAD might cost.

But there’s some strong resistance to SSAD Light, notably from former ICANN chair Steve Crocker, who recently called it “nonsense” with a design that does not match its goals.

Nevertheless, the GNSO Council submitted the bare-bones proposal to the ICANN board in an April 27 letter (pdf).

Since then, it’s emerged that simply fleshing out the design for SSAD Light would add at least six weeks to the separate Operational Design Phase of the next new gTLD application round (known as SubPro). I assume this is due to ICANN staff workload issues as the two projects are not massively interdependent.

This delay could extend to “months” to SubPro if ICANN is then asked to build SSAD Light, according to Jeff Neuman, who’s acting as liaison between the GNSO and ICANN on the SubPro ODP.

In a nutshell, the GNSO Council is being asked what it wants more — Whois reform, or more new gTLDs. It’s a recipe for fireworks, and no mistake.

It will meet May 19 to discuss the matter.

Washington DC picked for ICANN 77

ICANN is set for a rare visit to the mainland USA for one of its public meetings next year.

Capital Washington DC has been picked for ICANN 77, set to run 12-15 June, 2023, according to a vote of the board of directors published today.

It will be the first time ICANN has summoned its hordes to its native shores since 2014, when it held a meeting in Los Angeles.

Seattle had been picked for last October’s ICANN 73, but it was cancelled due to pandemic travel restrictions.

ICANN rotates its meetings through five geographic regions, and recent North American meetings have meant Canadian and Puerto Rican venues.

It will be the first time ICANN has picked DC for a public meeting. It has an office there.

ICANN salary porn: 2021 edition

It’s that time of year again when ICANN publishes its tax returns and we all get to ogle the phat paychecks its top brass are cutting themselves with domain registrants’ money.

Headlining, CEO Göran Marby actually got paid a bit less in fiscal 2021, which ended last June, than he did the previous year — $908,674, plus another $68,866 from “other” sources.

That total of $977,540 is lower than the total of $1,059,222 he received in fiscal 2020, largely due to receiving about $94,000 less in bonus payments.

Marby was given a 5% pay raise in February 2021, though not without some director dissent.

The Form 990 goes on to disclose the salaries of 35 ICANN management and directors, showing that 19 of them make over $300,00 a year. Five, including Marby, receive over half a million dollars.

Directors, if they choose to draw a salary, take home a flat $45,000, which is sometimes paid to their companies instead. Chair Maarten Botterman had $75,000 paid to his consulting company.

The filing reveals that VP Cyrus Namazi, who left the Org during the period after attracting sexual harassment complaints from at least two female colleagues, was given a $375,000 golden parachute.

And former COO Susanna Bennett was given $380,380 in severance payments, despite the fact that her departure was originally described by Marby as her own voluntary decision.

Law firm Jones Day was the best-paid contractor, billing $8,769,608 in the year. That was up from $5,513,028 in the previous year.

Software developers Architect, Zensar and OSTechnical received $2,769,856, $1,396,232 and $1,093,070 respectively, presumably for work on the ICANN web site.

ICANN’s revenue for the year was $163,942,482, of which $97.5 million came from registrars and registries.

The Org had $555,804,201 in assets at the end of the year.

You can download the forms here.

UDRP comments reveal shocking lack of trust in ICANN process

Is trust in the ICANN community policy-making process on the decline? Submissions to a recent public comment period on UDRP reform certainly seem to suggest so.

Reading through the 41 comments filed, it’s clear that while many community members and constituencies have pet peeves about UDRP as it stands today, there’s a disturbing lack of trust in ICANN’s ability to reform the policy without breaking it, and very little appetite for a full-blown Policy Development Process.

It’s one area where constituencies not traditionally allied or aligned — such as domain investors and intellectual property interests — seem to be on the same page.

Both the Intellectual Property Constituency and the Internet Commerce Association are among those calling for any changes to UDRP to be drafted rapidly by subject-matter experts, rather than being opened to full community discussion.

The IPC called the UDRP “a vital and fundamental tool that has a long and proven track record”, saying it has “generally been consistently and predictably applied over the course of its more than 20-year history”. Its comment added:

it is critically important that future policy work regarding the UDRP not diminish, dilute, or otherwise undermine its effectiveness. Such policy work should be extremely deferential to and reliant on the input of experts who have actual experience working with and within the UDRP system, and resistant to efforts that would weaken the UDRP system; any such work should be based on facts and evidence of problems in need of a systematic policy-level solution, and not merely to address specific edge cases, differences of opinion, or pet issues.

That’s pretty much in line with the ICA’s comments, which state that participants in future UDRP reform talks “should be experts… individuals who have extensive personal and practical knowledge of the UDRP through direct personal involvement”.

That language — in fact several paragraphs of endorsement for an expert-driven effort — appears almost verbatim in the separately filed comments of the Business Constituency, of which the ICA is a member.

The ICA’s reluctance to endorse a full-blown PDP appears to come from the experience of the Review of all Rights Protection Mechanisms in all gTLDs PDP, or “Phase 1”, which ran from 2016 to 2020.

That working group struggled to reach consensus on even basic stuff, and at one point frictions reached a point where allegations of civility rules breaches caused warring parties to lawyer up.

“Phase 1 was lengthy, unproductive, inefficient, and an unpleasant experience for all concerned,” the ICA wrote in its comments.

“Perhaps the biggest problem with Phase 1 was that structurally it was inadvertently set up to encourage disagreements between interest groups rather than to facilitate collaboration, negotiation, and problem solving,” it said.

The BC arguable goes further in its deference to experts, calling on ICANN to invoke section 13.1 of its bylaws and drag the World Intellectual Property Organization — leading UDRP provider and drafter of the original 1999 policy — as an expert consultant.

The BC also wrote:

It is imperative that stakeholders do not unnecessarily open up a can of worms with the UDRP through destabilizing changes; rather, they should take a focused and targeted approach, only entertaining improvements and enhancements which stand a reasonable chance of gaining consensus amongst stakeholders

WIPO itself is thinking along the same lines:

If the choice is made to review the UDRP, the process should be expert-driven and scoped

To avoid undoing the UDRP’s success, ICANN needs to give serious consideration to the weight to be accorded to the various opinions expressed. So-called “community feedback” referred to, for example, in section 4 of the PSR seems to lack specific depth and can seem more ideological or anecdotal

Comments from ICANN’s contracted parties also expressed concerns about a PDP doing more harm than good.

The Registries Stakeholder Group has almost nothing to say about ICANN’s report, but the Registrars Stakeholder Group expressed concerns that “any updates could have unintended consequences resulting in a less effective UDRP”.

It uniquely brought up the issue of volunteer fatigue and ICANN’s cumbersome backlog of work, writing:

Although the RrSG recognizes that there are some minor areas for improvement in the UDRP, it is the position of the RrSG that a full policy development process (PDP) is not necessary. The UDRP was adopted in 1999, and has been utilized for over 60,000 UDRP cases. The RrSG is not aware of any major issues with the UDRP, and is concerned that any updates could have unintended consequences resulting in a less effective UDRP. Additionally, not only is there a backlog of policy recommendations waiting for ICANN Board approval or implementation, but the RrSG is also aware of substantial community volunteer fatigue even for high-priority issues.

These comments were filed in response to a public comment period on an ICANN-prepared policy status report.

Not every comment expressed skepticism about the efficacy of a PDP. Notably, the Non-Commercial Stakeholders Group — the constituency arguably most likely to upset the apple cart if a Phase 2 PDP goes ahead — appears to fully expect that such work will take place.

There were also many comments from individuals, mostly domainers, recounting their own experiences of, and reform wish-lists for, UDRP.

ICANN’s report will be revised in light of these comments and submitted to the GNSO, which will decide what to do with it.

Covid surge scuppers ICANN LA meetings

ICANN has lost out on a chance to test a return to in-person meetings ahead of ICANN 74, due to a surge in Covid-19 cases in its home town of Los Angeles.

The US Centers for Disease Control has increased its risk rating for LA to “High”, compelling ICANN to scrap plans for a face-to-face board meeting next week.

Chair Maarten Botterman wrote:

The Board discussed the rising cases, the change in the CDC risk level, the trajectory, and the collective responsibility we have to ensure the health and safety of all of the participants, including ICANN Org staff who would support the events – and we recognized the additional risk of bringing all of ICANN leadership together in one place, under these circumstances – only six weeks before ICANN74.

The meeting will instead be held virtually by Zoom.

It’s not yet clear whether this will have any impact on ICANN’s next public meeting, which is due to take place in The Hague, the Netherlands, this June.

Botterman wrote that the Org is monitoring the situation on the ground and will provide updates as necessary.

ICANN has already announced a stringent set of restrictions, including mask wearing and social distancing, for ICANN 74.

ICANN picks recipient of $1 million Ukraine aid

ICANN has decided to donate $1 million to the Emergency Telecommunications Cluster, an international organization that helps people stay connected during times of crisis.

The donation was announced at ICANN 73 in early March, not long after Russia’s invasion of Ukraine, and ICANN has spent the last six weeks picking a recipient and doing its due diligence. For ICANN, that’s basically warp speed.

The ETC is one of 11 “clusters”, overseen by the UN’s Inter-Agency Standing Committee, which provide relief during humanitarian crises. Other clusters help with food, medicine, and so on.

Its partners include UN agencies, other governmental bodies, charities, and private companies such as Cisco and Iridium.

The ETC has been on the ground in Ukraine since March 3, preparing to provide emergency communications and strengthen infrastructure against cyber-attacks, though its latest report notes that Ukraine’s infrastructure is holding up pretty well so far.

ICANN CEO Göran Marby said in a statement:

This is an initiative for which we have no precedent; it is a first for ICANN. I am proud of the org for the drive and commitment to quickly identify the best path and organization to efficiently deliver meaningful support. The ETC’s vision of “a world where safe and local access to reliable communications is always available” is well aligned with our mission to ensure the stable and secure operation of the Internet’s unique identifier systems.

ICANN’s board has approved an ongoing program of similar donations, not just for Ukraine.

More friction over closed generics

ICANN’s Generic Names Supporting Organization and Governmental Advisory Committee seem to be headed to bilateral talks on the thorny issue of whether “closed generic” gTLDs should be allowed, but not without discontent.

The GNSO’s Non-Commercial Stakeholder Group last week opposed these talks, suggesting that the GAC is trying to acquire more policy-making power and take a second bite at the apple on a issue it has already advised on.

The NCSG wrote (pdf) to the GNSO Council last Thursday to oppose GAC talks, which are being encouraged by ICANN management and board.

Closed generics are dictionary-word gTLDs that do not match the registry’s trademarks but which nevertheless act as though they are a dot-brand, where only the registry may register domains.

There aren’t any right now, because ICANN, acting in 2014 in response to 2013 GAC advice, retroactively banned them from the 2012 application round, even though they were initially permitted.

It’s such a divisive issue that the GNSO working group (known as SubPro) that made the policy recommendations for the next round was, I believe uniquely, unable to come up with a even a fudged recommendation.

The GAC is sticking to its view that closed generics are potentially harmful, and since the GNSO couldn’t make its mind up, ICANN has suggested an informal dialogue between the two parties, to encourage a solution both deem acceptable that could then be thrown back at the GNSO for formal ratification.

The NCSG objected to this idea because it appears, NCSG said, that a new policy process is being created that increases the GAC’s powers to intervene in policy-making when it sees something it doesn’t like.

But the constituency appeared to stand alone during a GNSO Council meeting last Thursday, where the prevailing opinion seemed to be that dialogue is always a good thing and it would be bad optics to refuse to talk.

The Council has formed a small team of four to decide whether to talk to the GAC, which is in favor of the move.

ICANN’s Covid-19 waiver formally appealed

Two reliably regular ICANN meeting attendees have formally asked the Org to change the legal waiver it’s asking everyone to sign if they want to show up in The Hague for ICANN 74 this June.

Michele Neylon of registrar Blacknight Solutions and Eberhard Lisse of .na ccTLD registry Namibian Network Information Center filed an emergency Request for Reconsideration with ICANN last week.

They call the waiver, which absolves ICANN from liability if participants catch Covid-19 even through ICANN’s own gross negligence “unduly broad” and “unreasonable” and “unduly wide and harsh”.

They can’t ask their staff to sign such an all-encompassing waiver, they say.

ICANN’s Board Accountability Mechanisms Committee has already rejected the RfR, saying it doesn’t meet the timing requirements for an emergency request. It will consider it as a regular request in due course, it said.

As expected, ICANN also seems to have fixed the bug I spotted last week that allowed hybrid attendees to register without signing the waiver.