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

  • To: Mawaki Chango <ki_chango@xxxxxxxxx>
  • Subject: Re: [gtld-council] Options regarding ICANN staff responsibility with respect to string criteria
  • From: Liz Williams <liz.williams@xxxxxxxxx>
  • Date: Fri, 2 Mar 2007 14:46:44 +0100

Mawaki

I need to make sure that there is no misunderstanding about "being listened to" and the status of constituencies.

As the lead policy staff member for the new TLDs process, I wanted to reiterate that I listen to and try to reflect in our reports all views that have been supported by a majority of people. There is always disagreement in much of what we do because there is such a diverse stakeholder base.

For the record, you will be aware that, after I received the December 2006 response paper from the NCUC, I sent a message to NCUC members asking for a special meeting to see if we could work through some of your constituency's concerns. After that I had a long conference call -- to which you and Milton were invited -- with Robin Gross to again see what we could do to address the NCUC's views. Robin agreed that she would provide suggested amended wording which she did right before the LA meetings. This was discussed in detailed with you in the room and Robin on the phone last week. I also had a separate meeting with Milton in Brussels and urged him to provide alternate wording that captured your ideas - this found its way into Robin's note. The NCUC have since released a statement about their views on the draft recommendations.

This is all part of the normal process of how we reach conclusions. No views are excluded and everyone is certainly listened to. The biggest task for any constituency is to turn their objections into language which proposes a solution to problem rather than continuing to identify where problems exist without being part of the solution. The other large task is to spend time with other constituency members arguing cogently and persuasively about why the constituency's views should become the majority view.

Of course, if you need any further help, please let me know.

Liz
.....................................................

Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob




On 02 Mar 2007, at 01:26, Mawaki Chango wrote:

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









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