RE: [gnso-rn-wg] Controversial Names Subgroup report

["Michael D. Palage" <Michael@xxxxxxxxxx>]

Avri:

Thanks for your hard work. While I support the general principles
contained in the report, I do have some significant reservations about
their potential implementation which I will try to explain below.

As a contributor of the second addition, I just wanted to expand on why
I think this requirement is needed and why I hope the full group will
see the benefit of making this part of the consensus position and not
merely a "minority" statement.

ICANN is suppose to be built upon openness and transparency. While I
respect the rights of each Supporting and Advisory Organization to set
its own process for reaching a decision, I believe the ICANN bylaws
require the disclosure of how the members of the Support/Advisory
Organization voted (support, opposed. Abstain). This is actually totally
consistent with the LSE recommendation regarding the GNSO Review. When a
Support/Advisory Organization puts forward an position
(consensus/formal) to label an application "controversial" what that
organization is effectively doing is blocking the business pursuit of a
third party. As we saw crystal clear in the ICM debacle, no amount of
concessions by a registry operator will appease those that want the
application to die. Thus I believe we as a Working Group need to
acknowledge that fact and ask ourselves the question, when that happens
should the business applicant sentenced to a "controversial" label death
sentence have a right to face his/her accused or they merely only able
to know the name of the Supporting/Advisory Organization that signed its
death sentence? I fully respect the rights of Supporting/Advisory
Organizations to objection to potential applications but I submit that
the letter and spirit of ICANN's bylaws with regard to openness and
transparency require the Supporting/Advisory Organization to disclose
how their members voted and/or abstained on a matter. If the ICANN Board
is going to have to make a tough decision, they should have the facts
and positions of how a Supporting/Advisory Organization reached it
decision.

Hopefully the whole group with see the benefit of this approach. If they
do not Chuck please consider this a minority statement placeholder for
tomorrow.

The second concern I have after re-reading the proposed recommendation
is the following text in the 2.b

"Notwithstanding the outcome of any such dispute, National law must
apply to any applicants within its jurisdiction and in cases where the
processes of International law allow enforcement of one nation's law on
applicants from a different jurisdiction, those processes should apply."

As you know I fully support the requirement that each registry comply
with national law. My concern is the last section of text that states,
"and in cases where the processes of International law allow enforcement
of one nation's law on applicants from a different jurisdiction, those
processes should apply."

I have concerns about this text for two reasons. First it is redundant.
If a registry is complying with national law, that national law will
require the registry to comply with any international law established by
treaties, or similar agreements. Therefore that added text is redundant
at best, but ambiguous at worst. Part of the new gTLD process is to
create clarity and predictability into the new gTLD process. However,
this added text potentially allows a government to object based upon a
violation of what it believes is international and then impose that on
another party in another country. I submit that this is a black hole
that we would be best to avoid. In a worse case scenario, as outlined
above the government objecting to the application may not even have to
identify itself if the GAC merely decides to object without disclosing
the position of its members.

Therefore, while I FULLY support the requirement that registries (or for
that matter all registration authorities) comply with their national
laws, I believe the second part of the text regarding "international
law" needs to be stricken because it is redundant at best, ambiguous at
worst. 

As previously stated, I hope the whole group sees the benefit of this
approach, however, if they o not Chuck please consider this a minority
placeholder statement for tomorrow.

Best regards,

Michael



-----Original Message-----
From: owner-gnso-rn-wg@xxxxxxxxx [mailto:owner-gnso-rn-wg@xxxxxxxxx] On
Behalf Of Avri Doria
Sent: Wednesday, May 09, 2007 1:55 AM
To: GNSO RN WG
Cc: Controversial TLDs
Subject: [gnso-rn-wg] Controversial Names Subgroup report


Hi,

I have attached rev 06 of the Controversial Names report.  While I  
have done my best to try and capture the 'strong support' point of  
the sub-group, some comments came in at the end that were merged into  
the document without sub-group discussion.

The two primary recommendations that came in late were:

- a basic reorganization of the dispute resolution process for  
clarity with some content editing for achieving majority support.

- the addition of a requirement that

> Any consensus or other formally supported position from an ICANN
> Advisory Committee or ICANN Supporting Organization must document  
> the position of each member within that committee or organization  
> (i.e., support, opposition, abstention) in compliance with both the  
> spirit and letter of the ICANN bylaws regarding openness and  
> transparency.

It is possible that sub-group members may want to add minority  
statements with regard to these changes if I have incorrectly  
perceived the level of support.

thanks.

a.