RESEND: comments on specific aspects of DAG v4

["Mary Wong" <MWong@xxxxxxxxxxxxx>]

As my previous message ended up garbled, I  am resubmitting the same comments 
in plain text format. I hope it works this time!

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. 

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.

(1) Background Checks (Module 2)

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. 

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.

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?

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.

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).

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.

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.

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.

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.

(2) Morality & Public Order Objections (Module 3)

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.

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.

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.

(3) Independent Objector (Module 3)

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). 

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.

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.

These concerns about the IO are particularly magnified given the IO's mandate 
to file MAPO objections. 

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.

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.

-- 
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong@xxxxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: 
http://ssrn.com/author=437584



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