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Comments on several aspects of DAGv4
- To: <4gtld-guide@xxxxxxxxx>
- Subject: Comments on several aspects of DAGv4
- From: "Mary Wong" <MWong@xxxxxxxxxxxxx>
- Date: Wed, 21 Jul 2010 14:51:50 -0400
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<DIV>Although I am one of the elected GNSO Councillors for the
Non-Commercial Stakeholder Group (NCSG) and have shared these comments with
NCSG members, they have not as yet been vetted by the NCSG process so
as to constitute an official NCSG statement. As such, they are being
submitted in my personal capacity. </DIV>
<DIV> </DIV>
<DIV>The following comments relate to several specific aspects of version
4 of the draft Applicant Guidebook; viz., Module 2 (Evaluation Procedures)
regarding Background Checks, and Module 3 (Dispute Resolution) regarding
Morality & Public Order objections and the role of the Independent
Objector. All page and section references are to the redlined version of the
draft Applicant Guidebook.</DIV>
<DIV> </DIV>
<DIV>(1) Background Checks (Module 2)</DIV>
<DIV> </DIV>
<DIV>No basis was provided for the introduction of this additional step in the
application process into the Guidebook. While a certain level of background
check on an applicant may be viewed as desirable by some, the current
suggestions go even beyond what is reasonably necessary for the presumed
purpose of identifying applicants with potential financial or operational risks
early on. </DIV>
<DIV> </DIV>
<DIV>First, the least intrusive check that can be done (should any such check
even be deemed necessary) must be one on the applicant itself (i.e. the
entity applying for the potential new gTLD), in relation to its financial,
technical and operational capabilities (in keeping with the other requirements
of the Guidebook). To the extent that this makes it absolutely vital
to also conduct a check on the applicant's management, this should be limited
to active officers, directors and, possibly, majority shareholders of the
applicant. The word "partners" (pg 2-1, Section 2.1) in this context is, in
addition, confusing, as the legal meaning of the word is different from the
broader, more general meaning in ordinary use.</DIV>
<DIV> </DIV>
<DIV>Secondly, some of the grounds upon which a background check are to be
based appear overly vague and/or disproportionate to the objectives
of this type of background check. For instance, would a check on
whether an entity or one of its directors engaged in "terrorism" come back
positive because that entity or person has been charged in one national court
with abetment of a terrorist act according to just that one country's
definition of terrorism? Does ICANN limit terrorism to
mean constituting a security threat to critical Internet
infrastructure, and according to whom?</DIV>
<DIV> </DIV>
<DIV>While the scale of serious matters such as terrorism (however defined) and
war crimes (another highly-charged phrase) cannot be denied, how would those
issues affect the deployment of new gTLDs and the operation of the DNS, such
that it is appropriate for ICANN to deny an application on those
grounds? One can perhaps agree that a company that has been found to have
engaged in "corporate fraud and financial regulatory breaches" may not be an
appropriate new gTLD registry operator, but these are purely financial and
operational issues that are directly linked to the capacity of a potential new
gTLD registry operator.</DIV>
<DIV> </DIV>
<DIV>Thirdly, the question of whether an applicant (or its officers, directors,
shareholders and partners) engaged in "intellectual property
violations" (pg 2-2) does not seem to belong in the same category of
serious concerns as the other grounds listed as subjects of background checks.
If ICANN wishes to ensure that serial cybersquatters and other, proven cases of
abusive trademark users will not be allowed to operate a new gTLD, then
this category ought specifically to be limited to just these particular cases
(and not, for instance, extended to someone who unknowingly infringed a
copyright at some prior point in his/her personal life).</DIV>
<DIV> </DIV>
<DIV>Fourthly, even though the decision whether or not an applicant has passed
a background check is made on a "case by case basis" (pg 2-2), the draft
as it stands gives ICANN (and, for that matter, the entity conducting the
background check) broad discretion to consider many more factors than those
listed and to make a decision. </DIV>
<DIV> </DIV>
<DIV>There is also no provision for informing the applicant either that it (or
one of its officers, directors etc.) has triggered any alarm bells in the
course of the background check, or even that it has failed because of a
negative background check. Further, there is no provision for any appeal or
review of a decision to disallow the application to go further because of
a failed background check.</DIV>
<DIV> </DIV>
<DIV>I suggest that ICANN review the background check provisions. Unless
community feedback indicates strong, substantiated and principled support for
the concept of a background check, I would suggest that this requirement be
removed altogether. </DIV>
<DIV> </DIV>
<DIV>To the extent, however, that community feedback indicates that a
background check of some kind is necessary, these should be
strictly limited to, at most, cases of proven financial irregularity or fraud,
and possibly clear-cut, proven cases of cyber-squatting.</DIV>
<DIV> </DIV>
<DIV>(2) Morality & Public Order Objections (Module 3)</DIV>
<DIV> </DIV>
<DIV>Many members of the NCSG continue to oppose the inclusion of a
Morality and Public Order ("MAPO") objection in the new gTLD process, as do
I. My objection is based on the belief that (a) there are no truly global
standards for MAPO; (b) the laws, customs and norms of public international law
are inappropriate and do not fit into a private party transaction (as ICANN's
dealings with new gTLD registries would be); (c) the existing public
international law mechanisms for dealing with alleged infractions of
international treaties that touch on MAPO issues are entirely different in
objective, operation and effect from the dispute resolution panels contemplated
by ICANN; and (d) MAPO issues likely fall outside of ICANN's mandate.</DIV>
<DIV> </DIV>
<DIV>I take this opportunity to reiterate numerous earlier NCSG calls for
ICANN to publicly release the research it commissioned from the various jurists
and international law experts (such as were referenced in ICANN's earlier
Explanatory Memorandum on MAPO), so that the community can openly evaluate the
need for a MAPO objection process at all as well as the grounds upon which
ICANN is currently recommending that such a process be based.</DIV>
<DIV> </DIV>
<DIV>I would also call attention to the recent formation of a joint ACSO
group tasked with discussing the MAPO issues, and recommend that any further
action on MAPO be taken only with reference to the work to be done by that
group.</DIV>
<DIV> </DIV>
<DIV>(3) Independent Objector (Module 3)</DIV>
<DIV> </DIV>
<DIV>There is a troubling lack of specificity in both versions 3 & 4
of the Guidebook concerning the accountability of the Independent Objector
("IO"). While the broad general concept of such an office is in and of itself
uncontroversial, the very freedom currently recommended for the IO also means
that he/she does not have to act in consultation with any community, nor is
he/she obliged to receive public comments (pg 3-6). </DIV>
<DIV> </DIV>
<DIV>Further, while the IO is supposed to be an independent contractor to (and
not a full-time employee of) ICANN, his/her budget will necessarily emanate
from ICANN. The recommendation that the IO has potentially limitless renewable
terms (pg 3-6) is therefore a matter of concern.</DIV>
<DIV> </DIV>
<DIV>In addition, there is no process for any person or community who are
aggrieved or harmed by the IO's decisions and actions (or inactions, as the
case may be) to object or appeal. While it is reasonable to believe
that a responsible IO will not file a trivial or illegitimate complaint, there
is currently no redress for anyone or any group who believe
themselves prejudiced by a decision of an IO not to act, especially in
cases where a particular person or community may, for reasons such as
political suppression or financing, be unable to raise objections on their
own.</DIV>
<DIV> </DIV>
<DIV>These concerns about the IO are particularly magnified given the IO's
mandate to file MAPO objections. </DIV>
<DIV> </DIV>
<DIV>At the very least, specific provisions relating to an appeal and review
process for the IO and his/her conduct, as well as either non-renewable tenure
or a maximum number of terms, ought be included in the final Guidebook.</DIV>
<DIV> </DIV>
<DIV>Thank you for the opportunity to comment on the latest version of the
draft Applicant Guidebook. I look forward to an accurate and timely
summary and analysis of all comments received in this round, and to speedy
resolution of the issues highlighted through this comment process and
period.</DIV>
<DIV> </DIV>
<DIV>Mary Wong</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV><STRONG><FONT color=#800080>Mary W S Wong</FONT></STRONG></DIV>
<DIV>Professor of Law & Chair, Graduate IP Programs</DIV>
<DIV>Franklin Pierce Law Center</DIV>
<DIV>Two White Street</DIV>
<DIV>Concord, NH 03301</DIV>
<DIV>USA</DIV>
<DIV>Email: <A href="mailto:mwong@xxxxxxxxxxxxx";>mwong@xxxxxxxxxxxxx</A></DIV>
<DIV>Phone: 1-603-513-5143</DIV>
<DIV>Webpage: <A
href="http://www.piercelaw.edu/marywong/index.php";>http://www.piercelaw.edu/marywong/index.php</A></DIV>
<DIV>Selected writings available on the Social Science Research Network
(SSRN) at: <A
href="http://ssrn.com/author=437584";>http://ssrn.com/author=437584</A></DIV><BR>
<div>
<br><a href="http://www.piercelaw.edu/";><img
src="cid:MFHKELDJVDSP.affiliationlogo.jpg" alt="Pierce Law | University of New
Hampshire - An Innovative Partnership" border="0"></a> </div>
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