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

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

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