Re: [alac] ALAC concerns re: [gtld-com] Draft Final report gTLD committee

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

Hi Erick,

I think we make a few points related to consumer protection:

1. Our comments advocate opening the namespace to market competition, which 
we'd expect to increase selection and lower prices, both of which benefit 
consumers as purchasers of domain names and as Internet users.
2. Our earlier comments and the gTLD Committee draft recommend avoiding 
names that appear confusingly similar to existing names, and thus that 
could easily be used to confuse or mislead Internet users.
3. Business continuity planning, such as escrow requirements that would 
enable another registry to take over if one failed, can help protect 
consumers from losing a domain name due to registry failure.  (I don't 
necessarily think that discussion is appropriate in answering the board's 
question about "structuring the namespace," but it is something I'd suggest 
we support in the appropriate process later.)

Beyond that, I would recommend that ICANN stay out of the business of 
protecting consumers from bad *uses* of domain names, leaving that to 
governments.  I don't want to see ICANN regulating Internet content.

Did you have something else in mind?

Thanks.
--Wendy

At 08:11 PM 05/18/2003 -0500, Erick Iriarte Ahon wrote:
> Hi Wendy
>
> maybe i don't read good, but i don't read nothing about "consumer 
> protection" in the documents, maybe as At-large rep. we can sugest 
> something in this way.
>
> Erick
>
>
> At 04:54 p.m. 16/05/2003 -0700, Wendy Seltzer wrote:
> > The ALAC supports the latest draft's conclusion that "expansion of the 
> > gTLD namespace should be a bottom-up approach with names proposed by the 
> > interested parties to ICANN"; that "there should be no pre-determined 
> > list of new names that putative registries would bid for"; and that 
> > "expansion should be demand-driven".
> >
> > Beyond that basic conclusion, however, the ALAC finds that the 
> > specification of objectives or criteria has moved in the wrong direction 
> > since the last draft.  The expansion in scope concerns us on both 
> > procedural and substantive levels.  Procedurally, the lack of public 
> > comment is troubling, particularly as public input might have prompted 
> > reconsideration of some of the concrete issues we raise below.
> >
> > We continue to believe that ICANN should simply oversee development of a 
> > genuine competitive market for domain name services.  Basing market entry 
> > on a minimal and objective no-harm evaluation is key to achieving this 
> > goal.  While we understand the Council's desire to give more than a 
> > one-word answer, parts of the current expanded answer lean toward 
> > regulating this nascent market more than seems desirable.
> >
> > The latest draft appears to conflate "substitutability" with "confusing 
> > similarity," and thus would endorse anti-competitive prohibitions on 
> > similarity in the name of preventing confusion. Instead, these 
> > restrictive criteria would deny Internet users the widest range of 
> > options for name registration and deny market participants the chance to 
> > compete fully with incumbents.  We have trust in the ability of Internet 
> > users to differentiate among names serving similar markets.
> >
> >
> > In this light, we offer the following comments on the substance of some 
> > of the criteria:
> >
> > * Criterion 4, "An easily understood relationship must exist between a 
> > new gTLD and its stated purpose": The notion of "easily understood" is a 
> > function of the entity trying to understand the relationship. When used 
> > in an evaluation, this criterion would invite subjective judgment.  It 
> > seems more appropriate to leave this question for the market to answer -- 
> > *after* a TLD has been introduced. Further, we would emphasize that a 
> > TLD's "stated purpose" could also mean the generic "open to any use."
> >
> > * Criterion 6, "Future names should add-value to the domain name system." 
> > As a key objective of the entire process, addition of future names should 
> > not diminish the value of the domain name system. Individual prospective 
> > names, however, should not be scrutinized for their added value.  Once 
> > more, subjective judgment would be involved on a question which is more 
> > appropriately left for the market to answer.
> >
> > * Criterion 8 seems to suggest that incumbent TLD operators should have 
> > the ability to veto competitors addressing a segment of the same or a 
> > similar market, or to at least dictate competitors' policies, if these 
> > competitors use "translations or transliterations" of the incumbent's TLD 
> > string.  We fail to see the benefit of this criterion to the public at 
> > large.  To the contrary, it seems to unduly strengthen the position of 
> > incumbent operators over new market participants, damaging competition.
> >
> > * Criterion 11 seems to suggest that incumbent sponsors should have 
> > privileged access to market segments that would complement to the markets 
> > they are serving now.  This criterion would, in the case of sponsored 
> > TLDs, strengthen the role of incumbents even beyond what is suggested in 
> > point 8, and so the same concerns as above apply.
> >
> > * Criterion 12 seems to suggest that new TLD proposals should be designed 
> > to address markets which, if possible, do not overlap with those served 
> > by incumbent TLD operators.  This criterion too appears anti-competitive, 
> > rather than to the benefit of the public at large.
> >
> > * Concerning the draft's additional considerations on business 
> > continuity, we recommend that continuity planning be seen as an 
> > opportunity to permit easier entry (because it would alleviate problems 
> > attendant to registry failure), not to further restrict new entrants.
> >
> > Thank you,
> >
> > --Wendy Seltzer
> > Interim At-Large Advisory Committee, gTLDs Committee Liaison
> >
> > --

--
Wendy Seltzer -- wendy@xxxxxxxxxxx
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html
Chilling Effects: http://www.chillingeffects.org/