Re: [gtld-council] Regarding consensus

[Robin Gross <robin@xxxxxxxxxxxxx>]

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
>
> "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: 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.
> > > > >
> > > > >
> > > > >
> > > > >
> > > > >     
> > > > >
> > > > >          
> > >
> > >      
> >    
>