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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Mike,

Because of the late hour with regard to the RN-WG's existence, I think
it would be helpful if you could provide some redline edits to the
recommendations that could be considered by the subgroup and ultimately
by the full working group.  They could be incorporated into your
minority statements as well if needed.

With regard to controversial names, in my opinion there will end up
being procedures for dealing with statements from SOs or advisory
committee claiming a TLD name is controversial and the SO or advisory
committee will not have the final say.  Some criteria will have to be
established upon which a decision will have to be made as to whether
there is sufficient justification for forbidding the name.  Obviously,
the New gTLD PDP Committee has a lot of work to do on this in the next
month or so.  But anything we can provide to help in that effort will be
useful, even if it means alternative approaches.

Chuck Gomes
 
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> -----Original Message-----
> From: owner-gnso-rn-wg@xxxxxxxxx 
> [mailto:owner-gnso-rn-wg@xxxxxxxxx] On Behalf Of Michael D. Palage
> Sent: Wednesday, May 09, 2007 9:41 AM
> To: 'GNSO RN WG'
> Subject: RE: [gnso-rn-wg] Controversial Names Subgroup report
> 
> 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.
> 
> 
>