RE: [alac] .xxx rejected 9-5

["Roberto Gaetano" <alac_liaison@xxxxxxxxxxx>]

Jean,

First of all, I apologize for the sentence you highlight. I did not mean to 
imply that the discussion on .xxx was out of scope for our business.
What I meant was what I have been saying for years now: that in terms of 
extending the DNS, the IDN.IDN is, IMHO, far more important than creating 
additional latin TLDs. In other words, if I had to choose between the whole 
bunch of sTLDs now being processed and one single IDN TLD like, for 
instance, .china in punycode, I would not have the slightest doubt.

My frustration comes from participating in the last two years in endless 
debates about each and every single new TLDs, evaluating proposals, entering 
into legal details, discussing the merit and coverage of a sponsorship, and 
all that jazz that I can hardly justify as a major effort for the board of a 
body providing supervision to the Internet technical parameters. To me, the 
matter of opening the DNS is essentially a GNSO PDP who defines the process, 
the Board who approves it, and then a pure matter of whether the applicants 
will satisfy the PDP conditions or not. The last step could be easily 
subcontracted. However, we spend hours and days in discussing the minutiae, 
losing precious time to discuss other matters. But this is just my personal 
opinion and my personal frustration.

Still continuing with the personal opinion, I do firmly believe that the 
approval of .xxx would hardly had any of the expected benefits in terms of 
child protection. By this I don't want to imply that it had not to be 
approved: I only imply that it was not worthed the outrageously long time in 
debating. Again, had we a clear policy, the matter was: does it fit, yes? 
approved. No? rejected.

And this brings the real core of the matter for which I feel I have to 
reply, besides for my apology for the poor sentence you pointed out, the 
legal matter. The fear of being sued is a real element, but to act outside 
its mission is the recepy for being sued. The real problem is, IMHO, that 
the Board has to apply personal judgement in most of the decisions, and this 
basically because of insufficient soolidity of the framework.
For technical decisions, the risk if far lower. But if the decision of the 
Board implies for a company to earn millions or to go out of business, 
that's asking for lawsuits. In the specific .xxx case, to make an example, 
things have been started in what looked to be a fair way: criteria have been 
established, an external contractor has performed the evaluation according 
to the criteria and given a recommendation to the Board, the Board had to go 
back to the applicants to ask them to cure the aspects that were 
insufficient to pass the filter, and then a Yes/No decision, based on the 
above, had to be taken.
It so happened, that the .xxx application did not pass the evaluation 
according to the report of the contractor, and this, according to the 
report, not because of minor details but because of an intrinsic 
impossibility to satisfy the sponsorship criteria. Had the Board accepted 
that, and justified the vote to turn down the application on the basis of 
the consultant report, we would have saved time and money, and lowered the 
risk of lawsuit.
It might well be that DoC had put pressure behind the scenes. I can't tell, 
because I don't know what happens behind the scenes. You seem to imply that 
you would know more were you able to attend, or at least to have the 
recording of, the Board meetings. Well, since I am Liaison I failed to 
attend only few minutes of the grand total of the Board meetings, I read all 
the messages of the Board mailing lists (well, maybe skipping sometimes some 
bulky attachment, I have to admit), and the only Board activities that I 
missed are the once that happen at ICANN meetings when there's an overlap 
with important ALAC business. But I can assure you that, while a lot of 
discussion has gone on about the potential interference of some government, 
there has been no evidence of it. By which I do not mean that there could 
not be pressure from DoC or others. To be fair, I share your belief that 
there has been some pressure on individual Directors: it never happened to 
me probably not because they think that pressure would not work, but simply 
because it is not worthed the effort since I am not voting. What I want to 
state is that participation to Board meetings would not add knowledge of 
supposed or alleged backdoor mechanism to drive the vote of the Board. In 
this specific case, my assessment is (as I tried to sinthetise quoting the 
director who said: "I'm biting my tongue not to tell you I told you so") 
simply that some Board members though that the report of the contractor on 
.xxx was either wrong, or the issues raised could be cured, therefore it was 
worthed allowing them to proceed one step further. It turned out that this 
was not the case.

Regards,
Roberto GAETANO
ALAC
ICANN BoD Liaison





> From: Jean Armour Polly <mom@xxxxxxxxxx>
> To: ALAC@xxxxxxxxx
> Subject: RE: [alac] .xxx rejected 9-5
> Date: Thu, 11 May 2006 08:01:50 -0400
>
> Hi, I always like your reports back to us as they are informative and 
> insightful, but I have to disagree with some of your points. Especially 
> this one:
> > Now, can we go back to business?
>
> If this whole sorry saga isn't  our business, what is? In my opinion, the 
> board is ineffective because it is afraid of getting sued by this side or 
> that side. In my opinion it has lost its adherence to its true mandate 
> about making sure the internet runs smoothly in a technical sense.  I am on 
> the side of innovation, which includes the creation of many many more 
> domain names, and I am not at all convinced that governments should get a 
> say about what is created. (They may decide later what is routed but that 
> is a different question.)
>
> Maybe there should be some "hold harmless" clause that exempts the Board 
> from being sued as it carries out its technical duties. It is too afraid of 
> getting sued, and then it makes bad decisions. Look at the Verisign 
> settlement, for example.
>
> Meanwhile, the board approved this TLD to go to the negotiation stage last 
> year. The ICM people negotiated in good faith. Even as recently as 
> Wellington, Vint said (from the stage) he would vote for it. ICM Registry 
> did everything the right way and still lost at the last minute.
>
> Personally I have to wonder how much pressure the Department of Commerce 
> put on ICANN behind the scenes. What if ICANN approved it and then DOC 
> refused it? ICANN would look powerless, so they may as well reject it now. 
> I guess I could be disabused of this notion if I were able to hear the 
> Board's meetings. I wondered how "sunshine laws" might apply and then I 
> found this informative paper from 1999 
> http://cyber.law.harvard.edu/icann/workshops/LA/papers/openness.html
>
> How far we haven't come.
>
> Jean Armour Polly

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