Re: [gtld-council] Options regarding ICANN staff responsibility with respect to string criteria
MawakiI 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 themon.Quoting from David: "As I said during the meeting, this invocation of "internationallaw"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 nationalcourts(or more rarely by truly international courts), but thesesubjectsare not those likely to affect DNS strings (e.g. genocide). Whatthegroup may be struggling to say is something along the lines of:"theexisting legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles oflaw".This would cover, for example, the situation of "confusinglysimilar"trademarks. "Confusingly similar" is not a principle ofinternationallaw. 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 entitytowhich it is addressed, and may contain information that isprivileged,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 BruceTonkinSent: 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 providean 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 ifICANN itselfwas 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 raiseadispute as a complainant. This may keep ICANN focussedon its coremission and goals around technical coordination, and rely on an external process to determine whether a string was permissible.ICANN and theapplicant 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 topleveldomain 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 wouldnot want tomake a decision, but merely provide some professional advice.Ofcourse the applicant would be free to respond to this advice as part of the process. The ICANN staff undertook to examine theirlegalposition on this point. ii) Strings should not infringe the existing legal rights ofothersconsistent 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 legalnormsrelating 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 anappropriateexternal process that would make use of existing laws commonacrossmultiple countries with legal case history. The words"generallyaccepted 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