RE: [gtld-council] Options regarding ICANN staff responsibility with respect to string criteria

[Mawaki Chango <ki_chango@xxxxxxxxx>]

> ... but because we are not registry or registrar,
> you wouldn't listen to us

I realize my statement above may cause misunderstanding or some
concern, and would like to offer here a short clarification. That
statement was meant to be both general and factual.

General: it was not to say registries and registrars were favored *on
this topic*, not even that they have a strong view on it, but that
apparently, a view expressed from those constituencies may tend to
catch attention (which is good) more than those coming from others
(which is not necessarily good), maybe because they are the main
players in the industry. 

And this is not necessary the fact of the staff or the chair, but
apparently more so from my fellow councillors, and beyond them the
constituency structure of the GNSO... (*)

Factual: the voting counting system, for example, speaks to this, and
certainly because those two constituencies are the main players in
the industry (which also is a fact, and the categories 'good' or
'bad' don't make any sense at the level I'm discussing.) 

... (*) The thing is maybe the voting system (and the current
constituency eco-nomy of the GNSO) reflect too much on individual
councillors' perception.

I hope I haven't fueled or refueled any source of possible
misunderstanding by trying to quench a supposed one. If so, I'd
rather apologize in advance than try another clarification.

Mawaki


--- Mawaki Chango <ki_chango@xxxxxxxxx> wrote:

> [Note: It doesn't seem this went through on first posting; sorry if
> double posting.]
> 
> We have been repeating pretty much the same thing as the bottom
> line
> in David's reasoning, but because we are not registry or registrar,
> you wouldn't listen to us (we do have lawyers, though, even though
> I'm not one of them, and don't speak lawyers' language.)
> 
> The truth is, whether it is about personal data protection (Whois),
> trademarks and "confusingly similar" TLD strings, or public
> morality,
> there is no such thing as an "international law", much less a
> global
> one. There are shared principles (this may be a cultural
> issue/feature, or the consequence of legal cooperation among
> different jurisdictions/countries, etc.) on the basis of which
> related laws are quite similarly interpreted in their respective
> relevant jurisdictions. On the long run, it gives the impression
> that
> we are dealing with the same homogenous corpus of laws, or a single
> and common source of laws, but in fact each court decision relies
> on
> the provisions of legally defined and different jurisdictions.
> 
> As a consequence, it seems to me we are creating (and not realizing
> yet) a new (?) genre or type of recommendations, one that I would
> call the "recommendations of good intention" and guidance. In
> another
> word, we just want to tell the community that ICANN will, in good
> faith, observe the generally accepted legal principles, e.g., about
> people's established rights, etc., and that we would like to urge
> the
> applicants to take that into account for the strings they chose to
> apply for. But we certainly don't want to go all the way to saying
> that ICANN will have the final say about who has the right to what,
> and why. Tricky, isn't it.
> 
> I suggested in Marina del Rey that this kind of recommendations
> (re.
> confusingly similar and public morality) clearly reference the
> legal
> basis/traditions/principles that ICANN is ready to endorse as its
> norms of reference in making those decisions. You will not be
> surprised if I say I don't considered that the ideal, but the only
> compromise I see if the majority of the committee decide to keep
> those recommendations with multi-legislation notions.
> 
> Another option would be to go ahead and clearly categorize, and
> differentiate in our report, that type of recommendations as per my
> characterization above (and as opposed to ICANN actionable
> recommendations that will focus on its technical coordination
> function.) In this case, they will be offered by the Council to the
> Board as guidelines to guide their decisions in cases of
> uncertainty
> *and where there is no legal challenge*. And if accepted by the
> Board, they will serve to inform the public as part of the
> guidelines/criteria they are invited to take into account for TLD
> application in order to maximize their chances to win a string
> *without challenge in courts*.
> 
> Of course a last option, and the best to some point of view which
> you
> may not share, is to drop these multi-legislation based (and
> legally
> ambitious) recommendations altogether.
> 
> Regards,
> 
> Mawaki 
> 
> 
> --- Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx> wrote:
> 
> >  Thanks Chuck - such suggested wording improvements are very
> > helpful.
> > Thanks for David's constructive feedback.
> > 
> > It is easy to say that any given wording is not good, it is much
> > harder
> > to suggest how to make it better :-)
> > 
> > Regards,
> > Bruce Tonkin
> > 
> > 
> > > -----Original Message-----
> > > From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] 
> > > Sent: Thursday, 1 March 2007 6:47 AM
> > > To: Bruce Tonkin; gtld-council@xxxxxxxxxxxxxx
> > > Cc: John Jeffrey; Kurt Pritz; Dan Halloran; Maher, David
> > > Subject: RE: [gtld-council] Options regarding ICANN staff 
> > > responsibility with respect to string criteria
> > > 
> > > Regarding "ii)    Strings should not infringe the 
> > > existing legal rights of
> > > others consistent with international law, recognising that 
> > > the applicant
> > > may have rights or legitimate interests in respect of the 
> > > string", David
> > > Maher shared some thoughts and made a suggestion on the RyC 
> > > mailing list
> > > that I think are helpful and he gave me permission to pass them
> > on.
> > > 
> > > Quoting from David:
> > > 
> > > "As I said during the meeting, this invocation of
> "international
> > law"
> > > does not make sense.  There is no "international law" of 
> > > trademarks, for
> > > example. There are a very small number of subjects where 
> > > there is a body
> > > of international law enforceable, through treaties, by national
> > courts
> > > (or more rarely by truly international courts), but these
> > subjects
> > > are not those likely to affect DNS strings (e.g. genocide).
> What
> > the
> > > group may be struggling to say is something along the lines of:
> > "the
> > > existing legal rights of others that are recognized or 
> > > enforceable under
> > > generally accepted and internationally recognized principles of
> > law".
> > > This would cover, for example, the situation of "confusingly
> > similar"
> > > trademarks. "Confusingly similar" is not a principle of
> > international
> > > law. It is a principle of the trademark laws of nearly every 
> > > nation, and
> > > is recognized globally."
> > > 
> > > It seems to me that David's suggested rewording makes good
> sense.
> > > 
> > > Chuck Gomes
> > >  
> > > "This message is intended for the use of the individual or
> entity
> > to
> > > which it is addressed, and may contain information that is
> > privileged,
> > > confidential and exempt from disclosure under applicable law.
> Any
> > > unauthorized use, distribution, or disclosure is strictly 
> > > prohibited. If
> > > you have received this message in error, please notify sender
> > > immediately and destroy/delete the original transmission." 
> > >  
> > > 
> > > > -----Original Message-----
> > > > From: owner-gtld-council@xxxxxxxxxxxxxx 
> > > > [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Bruce
> > Tonkin
> > > > Sent: Saturday, February 24, 2007 1:58 PM
> > > > To: gtld-council@xxxxxxxxxxxxxx
> > > > Cc: John Jeffrey; Kurt Pritz; Dan Halloran
> > > > Subject: [gtld-council] Options regarding ICANN staff 
> > > > responsibility with respect to string criteria
> > > > 
> > > > Hello All,
> > > > 
> > > > In the discussion yesterday we recognised that ICANN staff 
> > > > responsibility with respect to the various string criteria 
> > > > could vary based on the specific criteria.
> > > > 
> > > > The options discussed were:
> > > > 
> > > > 
> > > > Option 1:  ICANN say nothing   
> > > > 
> > > > (ie ICANN merely sumarise public comment but do not attempt 
> > > > to use internal staff or paid external experts to provide 
> > > an opinion)
> > > > 
> > > > 
> > > > Option 2: ICANN identifies a possible issue, and ICANN files 
> > > > a complaint
> > > > 
> > > > 
> > > > (ie ICANN may use internal staff, as well as paid external 
> > > > experts if the staff think necessary, to provide a 
> > > > professional opinion on whether the string has an issue with 
> > > > respect to the string criteria, and ICANN could file a 
> > > > complaint with ICANN as the complainant with an external
> > > > dispute provider.   Note that this may be appropriate if 
> > > ICANN itself
> > > > was impacted by the choice of a particular string).
> > > > 
> > > > 
> > > > Option 3: ICANN identifies a possible issue, but relies on a 
> > > > complainant to file it formally
> > > > 
> > > > (ie ICANN may use internal staff, as well as paid external 
> > > > experts if the staff think necessary, to provide a 
> > > > professional opinion on whether
> > > > the string has an issue with respect to the string criteria. 
> 
> > > >  It would
> > > > then be up to third parties to decide whether to formally
> raise
> > a
> > > > dispute as a complainant.    This may keep ICANN focussed 
> > > on its core
> > > > mission and goals around technical coordination, and rely on 
> > > > an external
> > > > process to determine whether a string was permissible.   
> > > ICANN and the
> > > > applicant would agree to abide by the decision of the 
> > > > external process.)
> > > > 
> > > > Option 4: ICANN identifies and makes a decision, and the 
> > > > applicant can appeal
> > > > 
> > > > (ie ICANN may use internal staff, as well as paid external 
> > > > experts if the staff think necessary, to provide a 
> > > > professional opinion on whether
> > > > the string has an issue with respect to the string criteria. 
> 
> > > >     ICANN
> > > > would then make a decision based on the analysis, and the 
> > > > applicant could appeal ICANN's decision through the normal 
> > > > appeal mechanisms provided in the ICANN bylaws.)
> > > > 
> > > > 
> > > > 
> > > > Applying these options to the string criteria:
> > > > 
> > > > i)      Strings must not be confusingly similar to an existing top
> > level
> > > > domain 
> > > > 
> > > > There was some variation in opinion here between using option
> 
> > > > 3 or option 4.  It was thought that in obvious cases of 
> > > > strings that were confusing (particularly if this could be 
> > > > clearly identified as a potential security issue which is in 
> > > > ICANN's scope) then ICANN should
> > > > make a decision.   There were also cases where ICANN would 
> > > not want to
> > > > make a decision, but merely provide some professional advice.
>  
> > Of
> > > > course the applicant would be free to respond to this advice 
> > > > as part of
> > > > the process.    The ICANN staff undertook to examine their
> > legal
> > > > position on this point.
> > > > 
> > > > 
> > > > 
> > > > ii)     Strings should not infringe the existing legal rights of
> > others
> > > > consistent with international law, recognising that the 
> > > > applicant may have rights or legitimate interests in respect 
> > > > of the string 
> > > > 
> > > > 
> > > > The preference here was option 3 - with the requirement for a
> 
> > > > complainant to formally initiate a process through an 
> > > > external process (e.g UDRP like).
> > > > 
> > > > 
> > > > 
> > > > iii)    Strings should not cause any technical instability
> > > > 
> > > > 
> > > > The preference here was clearly option 4 as this is within 
> > > > ICANN's core mission.
> > > > 
> > > > 
> > > > 
> > > > iv)     Strings should not be a Reserved Word 
> > > > 
> > > > 
> > > > The preference here was clearly option 4 as this is within 
> > > > ICANN's core mission.
> > > > 
> > > > 
> > > > 
> > > > v)      Strings should not be contrary to generally accepted legal
> > norms
> > > > relating to morality or public order.  
> > > > 
> > > > The preference so far would be option 1 where ICANN would 
> > > > summarise public comment, but would not pay experts to render
> 
> > > > a professional opinion.  A complaint would need to be filed 
> > > > through an external
> > > > process.   This view was subject to ICANN identifying an
> > appropriate
> > > > external process that would make use of existing laws common
> > across
> > > > multiple countries with legal case history.   The words
> > "generally
> > > > accepted legal norms
> > > > relating to morality or public order" were intended to make 
> > > > use of commonly used terminology that is interpreted by legal
> 
> > > > processes across a broad range of countries.
> > > > 
> > > > 
> > > > Regards,
> > > > Bruce Tonkin
> > > > 
> > > > 
> > > 
> > 
> > 
> 
>