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Re: [gtld-council] Regarding consensus

  • To: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
  • Subject: Re: [gtld-council] Regarding consensus
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Tue, 29 May 2007 12:23:01 -0700

Hi Chuck,

Thanks for your comments.   I'll try to answer them specifically below.

Gomes, Chuck wrote:

Robin,

Regardless of whether specific reference was made to the NCUC proposal,
in my recollection the topics identified by the NCUC and even the
recommendations presented by the NCUC received a lot of focus.

With regard to the second recommendation by the NCUC (Remove ICANN as
arbiter of global public policy.  National govts would determine what is
permitted in the nation in question.), I actually think that the
recommendations that the RN-WG made with regard to both controversial
and geographic names match the NCUC recommendation quite well, although
I suspect they might not go as far as you like.  Also, on a more general
point, the New gTLD Committee has worked very hard to avoid making ICANN
"the arbiter of global public policy"; the whole concept of setting up
challenge processes that would be operated by independent third parties
is based on this goal.
This is an important difference worthy of highlighted. When NCUC expresses concern about ICANN deciding what words are too controversial, we are no only speaking literally about ICANN staff members. We are also talking about ICANN processes that involve third parties such as expert panels. This is still an ICANN process setting the rules for adjudication and making the determinations about what is too controversial or who the appropriate sponsor of an idea should be. These are not processes of democratically elected lawmakers with any level of public accountability. So because ICANN is out-sourcing the panels to yet another inappropriate forum does not address our underlying concern that these issues cannot and should not be legislated on a global level or by a private corporation who's mission is technical.

We are concerned that it would be impossible for groups like Amnesty International or Human Rights Watch to register strings like ".humanrights" in Chinese characters under the recommendations we are making, since the idea of human rights is offensive to the Chinese govt -- indeed to many govts. We are concerned that under our recommendations it would be impossible for activists to register ".microsoft" in order to provide information about software bugs in a non-commercial and entirely lawful way since we privilege trademark holders with a prior right to the disadvantage of non-commercial users.

And our policy seems to forget that people have a freedom of expression right to be offensive and to criticize trademarks. But these legal rights are not even mentioned in these draft recommendations. I worry that we are saying, 'don't worry about those uses, they'll be dealt with in the dispute resolution proceedings down the line'. But if we don't build any protection for these lawful, non-commercial registrations of a domain into our policy, then how ready will our dispute resolution providers be to protect free expression in their judgments?

We still have more work to do in that regard but
I personally think we are headed in a sound direction. Obviously, the
details of those processes are critical and we need to work on them.

Regarding Applicant Criteria ii (Applicants should be able to
demonstrate their financial and operational capability), much time was
spent talking about this in different meetings. We talked a lot about
whether a full business plan should be required and I think reached a
compromise that is acceptable that focuses primarily on financial and
operational plans, rather than a full blown business plan.
Yes this is an issue that we are less concerned with than before, and can basically live with this compromise. Our main concern at this stage is the freedom of expression issue. Thank you.

Finally, an overriding goal of the RyC and I think the New gTLD
Committee as a whole has been to ensure that applications are evaluated
on an objective basis against published criteria as the NCUC recommends.
I have been one who has particularly pushed this goal because the RyC
feels very strongly about it, but I also recognize that it is rarely if
ever possible to avoid some level of subjectivity in complicated
processes.  I just want us to do everything possible to minimize
subjectivity as much as we can.

It seems that we add subjectivity and arbitrariness into the mix when we evaluate based on non-technical and non-operational criteria. So we increase the subjectivity and the arbitrary decisions when we introduce criteria like "not contrary to public policy or morality". It does not get more subjective and arbitrary than that.

Thanks,
Robin

Chuck Gomes

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-----Original Message-----
From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] Sent: Friday, May 25, 2007 10:12 AM
To: Gomes, Chuck
Cc: Bruce Tonkin; gtld-council@xxxxxxxxxxxxxx
Subject: Re: [gtld-council] Regarding consensus

Hi Chuck,

Thanks for the response. I remember spending about 5 minutes on the NCUC proposal at the LA meeting and that is all. And I was trying to participate remotely at that meeting and it was almost impossible to hear anyone and have a real discussion due to technical difficulties with the teleconference. So my 3rd point is to ask for a meaningful discussion on the NCUC proposal.

Thank you,
Robin



Gomes, Chuck wrote:

Robin,

I would disagree with you on your third point because as a
participant
in the New gTLD Committee I recall us spending lots of time
considering
the issues and recommendations the NCUC put forward. Ultimately, it will be up to the Council to decide whether rough consensus was reached. But rough consensus does not mean that everyone got everything they wanted; I know for a fact that that is not
the case for
the RyC. But I do believe we are moving toward a set of recommendations that most of us can support and that is the
goal.  Is there still some work to do?  Yes.
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 Robin Gross
Sent: Friday, May 25, 2007 5:44 AM
To: Bruce Tonkin; gtld-council@xxxxxxxxxxxxxx
Subject: Re: [gtld-council] Regarding consensus

I have not seen the majority consensus that supports this controversial draft proposal on new gtlds. I question this point. I think we need to have some discussion as to whether the existing draft policy for new gtlds does, in fact, reflect the view of the majority of the gtld-council. I have had conversations with other council members
who also question the direction that this policy takes.

It seems to me that we are rushing to conclude this policy recommendation, perhaps for administrative reasons; but it
is no where
near a coherent policy that reflects the reality of existing international law, or the reality that an ICANN process could, as a practical matter, decide between competing public policy goals or differing views of morality.

So I'd like to propose three things:

1. Discuss whether the existing draft policy actually reflects the consensus view of the committee.

2. Accept input from neutral outside experts regarding how
this draft
policy tracks existing international legal standards for trademark rights and free expression rights.

3. In February, NCUC made a proposal to amend the draft policy recommendation, and the draft has yet to deal with the NCUC
proposal
in any way.
http://www.ipjustice.org/ICANN/drafts/022207.html
So I respectfully request that the policy development process deal with, or at least explain, why these proposals are not being considered.

Thank you,
Robin

I think it comes down to whether the point is seen as a "friendly amendment" - ie in someway enhances the current recommendation, or whether the point is essentially an argument against the
recommendation
as a whole, or is a completely new recommendation. The
recommendations
as they are drafted are intended to reflect the staff's
understanding
of the majority.











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