Re: [gtld-council] FW: [council] Next steps with the new gTLD recommendations

[Robin Gross <robin@xxxxxxxxxxxxx>]

Hi Ray,

Thanks for asking.   Our concerns come under three broad categories: i) 
lack of respect for free expression rights, ii) expansion in trademark 
rights, and iii) arbitrary decision-making processes by unaccountable 
parties.
Our main objection continues to be Recommendation #6: "strings must not 
be contrary to generally accepted legal norms relating to public 
order".   This provision ignores the freedom of expression guarantees 
from the Universal Declaration of Human Rights, but perverts the UDHR as 
justification to impose "sensitivity" in the new gtld space.  Its worth 
noticing which language from the UDHR is ignored and which is latched 
onto to justify particular positions.   We would like to see recognition 
of and respect for freedom of expression guarantees stated in our 
recommendations.  (Rec #5 that forbids places names and people 
descriptions also goes too far in controlling people's use of language 
and will prevent ordinary words being used for entirely legitimate 
purposes.  I don't subscribe to the idea that we must blindly and 
mindlessly go  along with GAC principles.   If we think some are 
misguided, we should say so.)
Recommendation #6 is also objectionable since it would reject or defer 
an application based on a public comment period in which any sector of 
the world could object.    So we seem to be asking for world-wide 
agreement on every new string applied for, giving institutions like the 
Catholic Church an opportunity to stop a domain ".gay" because they find 
it offensive.   We cannot institute a process of objective and 
measurable criteria with a process that allows for any possible 
opposition from any sector of world to reject an application.
Recommendation #11 is flawed because it calls for the use ICANN staff 
and processes such as expert panels to decide which ideas are too 
controversial and which applicants are the proper spokesman for an 
idea/string.   Besides the free expression problem, this recommendation 
will lead to arbitrary and subjective decisions and open ICANN up to 
legal liability for its decisions.  (Note IG-F(iv) gives ICANN Board the 
final decision).
Recommendation #3 privileges trademark owners over non-commercial uses 
of a word since its gives them a prior right of registration.    Under 
the law, a nonprofit organization that acts as a watch-dog to companies 
like Enron has an equal right to register the domain ".enron", but our 
recommended policy only privileges Enron's rights, and ignores the 
rights of legitimate non-commercial speakers to discuss Enron.
I hope that sheds some light on our concerns.

I will try to propose some new language that addresses these concerns.   
Thank you.
Best,
Robin



Ray Fassett wrote:

> Robin, if I may ask, specifically which of the 6 principles, 19
> recommendations, and/or 15 implementation guidelines is the NCUC not in
> support of?
>
> Ray
>
> -----Original Message-----
> From: owner-gtld-council@xxxxxxxxxxxxxx
> [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
> Sent: Tuesday, May 29, 2007 4:43 PM
> To: Gomes, Chuck; gtld-council@xxxxxxxxxxxxxx; Bruce Tonkin
> Subject: Re: [gtld-council] FW: [council] Next steps with the new gTLD
> recommendations
>
> Here's how I propose we move forward:
>
> 1.  We should at least consider the input from outside experts to 
> address the unresolved issue of how well our recommendations track 
> international law.
> 2.  Than have a discussion on our various views about the recommendation 
> (move the 7 June discussion back a couple weeks). 
>
> 3. We will have to consider and vote on each of the recommendations 
> individually to determine which actually belong in our final report.   I 
> agree that we can have 3 categories:
>   i. Very strong support - many parts of the proposal are not 
> contentious and so we don't need to spend a lot of time on these.
>   ii. Medium support - where a minority perspective on a particular 
> recommendation is shared by several council members.
>   iii. Weak support - where only half of the council supports a 
> recommendation.
> 4.  Then then council needs to vote on report as a whole.   I don't 
> believe we can delegate the responsibility of approving recommendations 
> to a committee.   The council must vote on the final report as a final 
> recommendation on a package of recommendations.
> Thanks,
> Robin
>
>
>
> Gomes, Chuck wrote:
>
>  
>
> > In my opinion there have been some very helpful comments in response to
> > Bruce's message and I find that I am in agreement with most of the
> > points made, although I won't repeat them here.  In that regard, I would
> > like to suggest the following as a means to help us decide how to move
> > forward in a constructive and timely way.
> >
> > First of all I think that it is helpful for us to consider the tables of
> > Implementation Principles, Proposed Recommendations and Implementation
> > Guidelines that Liz distributed in categories that will hopefully help
> > us narrow down our focus in the remaining work to be done.  I suggest
> > that the principles, recommendations and guidelines be grouped into the
> > following three categories: 1) those for which there appears to be broad
> > agreement; 2) those for which work has not yet been completed; and 3)
> > those for which many of us thought work was completed, but some members
> > are now questioning.
> >
> > To make it easier to work with the principles, recommendations and
> > guidelines, I created and attached a MS Word document that organizes
> > them according to how I think they might be categorized.  Interestingly,
> > if my assessment is accurate, I think that we probably have broad
> > support for a large majority of the principles, recommendations and
> > guidelines.  I only identified four for category two and didn't identify
> > any for category three although I would expect others to put a few in
> > category three instead of category one.
> >
> > In the attached document I suggest the following next steps as a way
> > forward:
> >
> > 1.      Identify which items that I have placed in category one that
> > should be moved to category three
> > 2.      Complete the work for the items in category two
> > 3.      Decide how to resolve any issues in category three.
> >
> > Using this approach it would not seem necessary to do any backtracking
> > except possibly for items put in category three, nor would it seem
> > necessary to consider each item separately except for those in
> > categories two and three.  If this is deemed to be a workable plan for
> > wrapping up our work, then I would predict that it will be relatively
> > easy to take Council vote at the end to validate a 2/3 majority and to
> > include any minority positions if necessary. 
> >
> > 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: Monday, May 28, 2007 6:44 PM
> > > To: gtld-council@xxxxxxxxxxxxxx
> > > Subject: [gtld-council] FW: [council] Next steps with the new 
> > > gTLD recommendations
> > >
> > >
> > > -----Original Message-----
> > > From: owner-council@xxxxxxxxxxxxxx 
> > > [mailto:owner-council@xxxxxxxxxxxxxx]
> > > On Behalf Of Bruce Tonkin
> > > Sent: Tuesday, 29 May 2007 7:59 AM
> > > To: Council GNSO
> > > Subject: [council] Next steps with the new gTLD recommendations
> > >
> > > Hello All,
> > >
> > > With respect to the Council meeting on 7 June, I would like 
> > > to get a sense of how the Council wants to handle the current 
> > > new gTLD recommendations.
> > > As others have pointed out, some of the recommendations 
> > > require further
> > > work with respect to developing dispute resolution processes. 
> > >   There
> > > are also no doubt some recommendations with stronger support than
> > > others.    The intent is that the recommendations as currently drafted
> > > by staff are capable of supermajority support based on the 
> > > discussions during the new gTLD committee meetings.
> > > My current concern is that if we don't move the work we have 
> > > done to some kind of vote - which may accept all or some of 
> > > the recommendations by super-majority vote - we are in danger 
> > > of losing the consensus that
> > > has been built up through many meetings.   I also feel we are at the
> > > point of diminishing returns.   No significant new issues 
> > > were raised in
> > > Lisbon that had not already been discussed in the new gTLD committee.
> > >
> > > I feel that there is a community expectation that the GNSO 
> > > Council either conclude its work, or at least identify which 
> > > bits are concluded to allow the Board to consider the 
> > > recommendations and to allow staff to
> > > begin to do further work.    We don't want the GNSO to be seen as the
> > > barrier to new TLDs (either IDN or non-IDN based).
> > >
> > > If we can't make some sort of statement about the level of 
> > > consensus of the recommendations, it becomes hard to justify 
> > > ICANN staff spending additional time working on the 
> > > implementation details.
> > > I expect that as staff begin working on the implementation 
> > > details of dispute processes and other implementation 
> > > details, that they may seek further clarification of the 
> > > recommendation, or even recommend the removal of a 
> > > recommendation if not external dispute process can be
> > > developed.     I would also expect that we will get more input on the
> > > dispute processes once detailed drafts are published - this 
> > > will ensure that issues such as freedom of speech are 
> > > properly addressed in the dispute processes.  
> > >
> > > No doubt as new people become involved in ICANN and the GNSO 
> > > - there will be desire to reset the clock, and start the 
> > > policy development again.  I feel however that we will never 
> > > get a perfect answer, and that it is better to proceed in 
> > > such a way that minimises risk in the first round, but also 
> > > allows flexibility to update the recommendations based on 
> > > experience of the first round.
> > >
> > > It would be useful to hear the views of Council members on 
> > > this topic via the Council mailing list prior to the Council 
> > > meeting next week.
> > > Regards,
> > > Bruce Tonkin
> > >
> > >
> > >
> > >
> > >
> > >
> > >   
> > >
> > >      
> >
> >    
>
>