RE: [gtld-council] proposed new Rec. #21

[Mawaki Chango <ki_chango@xxxxxxxxx>]

You're welcome, Chuck. 
I read the latest wording suggested by Bruce. The prerequisites
are still not clarified, in my opinion: Are we asserting that
ICANN is not in the business of picking strings for reasons
other that the stable operation of the DNS? And that all what
we've been discussing about decision and possible rejection of a
string only applies in a dispute resolution process (that will
not be handled by ICANN staff or board,) should an objection
arise and only then?

We need to reply straightforwardly to that main, two-fold
question (and make sure this is clearly reflected in the policy)
before we can meaningfully determine if a new wording is needed
at this point for #3 or 21, other than what has been suggested
so far.

Other than that, I'm struggling to see the added value of
stating in a dozen of lines what could be and has been expressed
in 3 or 4 lines. Remember, we agreed on the substance even a
couple weeks before San Juan. The only problem that became clear
to everyone at SJ is just a logical one (in fact I first raised
that problem on the June 7 call, and clarified on this list
thereafter the same day): a string does not infringe FoE but
only constraints imposed on it may do so. To this, you've added
the concern of not exposing unnecessarily ICANN to objection. To
better address this, we need to be clear about the role (thus,
its boundaries) of the organization in this process,
particularly in any decision that might be taken to impose
constraints on, or to reject, a string. ICANN shall be
answerable of its decisions to the community, if it has to take
one (and it's not really good governance to protect it from such
accountability,) but if it has not to take one (in a given
subject matter) then we can and should clarify the boundaries
both in its role and in its exposure to public objection (in
that subject matter.)

I don't seem to understand why this question proves difficult to
address. If we can't answer that prior question, then we should
just leave it at where we were 2/3 days ago. The wording was
then general enough to apply to whoever will take the
responsibility of dismissing an apllication string (without a
priori exposing ICANN _if_ it's not neccssary.)

Mawaki  


--- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:

> Thanks much Mawaki.  That helps me a lot.
> 
> I believe that the wording revision that Bruce recently sent
> covers what
> you say.  Your thoughts?
> 
> 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: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> > Sent: Tuesday, July 03, 2007 9:43 PM
> > To: Gomes, Chuck
> > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > Subject: RE: [gtld-council] proposed new Rec. #21
> > 
> > Chuck,
> > 
> > That last point relates to my previous post you said you 
> > concur with, particularly the paras. 1, 2, 3 in its last 
> > part. This is not about any specific phase of the
> application 
> > review process (ARP). The question is from the first to the 
> > last step of the ARP, does ICANN reserve the right to reject
> 
> > an application string for reasons other than the stable 
> > operation of the DNS (technical criteria)? If so, the intent
> 
> > and substance of #21 apply to ICANN;  but if any such 
> > decision about strings is to be taken _only_ by a dispute 
> > panel _in case_ of objection/challenge, then #21 will only 
> > apply to the dispute panel or resolution mechanism. 
> > 
> > Either way, the substance of #21 is needed, as we all agreed
> 
> > in San Juan, plus additional clarification in the latter -- 
> > re. "if any such decision about strings is to be taken
> _only_ 
> > by a dispute panel _in case_ of objection/challenge". I
> don't 
> > seem to have seen any provision to that effect in this PDP, 
> > but please correct me if I'm being betrayed by my memory.
> > 
> > The purpose of the whole point was to address your concern
> about
> >  (not) exposing ICANN. Please, if necessary, refer to my 
> > initial post as mentioned at the start of this message. 
> > 
> > Mawaki
> > 
> > --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> > 
> > > Thanks Mawaki.
> > > 
> > > I don't understand your last point: "Except that we still
> haven't 
> > > clarified whether ICANN's staff or board is entitled,
> within the 
> > > framework of this policy, to make decisions about strings 
> > outside the 
> > > scope of the technical criteria provisions."  What part of
> the 
> > > application review process are you talking about?  If you
> could 
> > > provide an example or two, that might help.
> > > 
> > > 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: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> > > > Sent: Tuesday, July 03, 2007 3:36 PM
> > > > To: Gomes, Chuck
> > > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > > Subject: RE: [gtld-council] proposed new Rec. #21
> > > > 
> > > > Chuck,
> > > > 
> > > > I re-read your message with the subtraction you
> indicated,
> > > and:
> > > > 
> > > > i) correction: please replace in my previous message
> every 
> > > > occurrence of "expert panel" by "dispute panel," which
> is 
> > > > more correct since I was trying to refer to your
> previous 
> > > > mention of a panel in this process;
> > > > 
> > > > ii) yes, it appears we're shooting in the same
> direction:
> > > the 
> > > > need to balance the right base of a possible 
> > > > challenger/plaintiff or any decision to reject a string
> with
> > > 
> > > > a right base applicable to the defendant (i.e. the tld
> > > applicant.)
> > > >  
> > > > 
> > > > Except that we still haven't clarified whether ICANN's
> staff
> > > 
> > > > or board is entitled, within the framework of this
> policy,
> > > to 
> > > > make decisions about strings outside the scope of the 
> > > > technical criteria provisions. If we leave that
> undefined or
> > > 
> > > > vague, then we need to accept a language along the lines
> of 
> > > > the proposed #21 (it all depends on who gets to make the
> 
> > > > decision; if ICANN doesn't make the decision, then it
> will 
> > > > not be exposed more than it already is.)
> > > > 
> > > > Mawaki
> > > > 
> > > > --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> > > > 
> > > > > Mawaki,
> > > > > 
> > > > > I think I agree with everything you said.  Upon
> re-reading
> > > 
> > > > my message, 
> > > > > I think I confused matters by saying "it seems
> important
> > > to 
> > > > make sure 
> > > > > that we are explicit about how the dispute panels
> evaluate
> > > all 
> > > > > challenges."
> > > > > By that I did not mean being explicit about
> implementation
> > > 
> > > > details but 
> > > > > rather explicit in the policy statement to ensure that
> all
> > > relevant 
> > > > > rights contained in international principles of law
> should
> > > 
> > > > be applied 
> > > > > in any rights based challenge.  I suggest you ignore
> the 
> > > > second clause 
> > > > > of my first sentence and focus on the rest of the
> message.
> > >  
> > > > I think it 
> > > > > says things similar to what you said.
> > > > > 
> > > > > 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: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> > > > > > Sent: Tuesday, July 03, 2007 12:55 PM
> > > > > > To: Gomes, Chuck
> > > > > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > > > > Subject: RE: [gtld-council] proposed new Rec. #21
> > > > > > 
> > > > > > Now it seems to me that we are mixing implementation
> > > > > language 
> > > > > > with policy language. It seemed to me that the
> intent of
> > > the
> > > > > 
> > > > > > policy we have agreed on, following NCUC-proposed
> > > amendment,
> > > > > 
> > > > > > is to let the community know that decisions about
> > > strings, 
> > > > > > _if any_, will take into encount or will not
> infringe 
> > > > > > pre-existing rights that are enforceable and widely
> > > > > recognized.
> > > > > > 
> > > > > > "If any" is the key phrase.
> > > > > > 
> > > > > > Now of course, it depends on what level of the
> process
> > > and 
> > > > > > what entity/authority will get to make that
> decision, if
> > > 
> > > > > > relevant; this is a policy item under which that
> > > authority 
> > > > > > will have to work. It may be that in a "normal"
> > > application 
> > > > > > process and evaluation, there will not be at all the
> > > need to
> > > > > 
> > > > > > make a decision about the string (because out of
> ICANN's
> > > - 
> > > > > > board and staff -
> > > > > > purview) until an objection or challenge is filed.
> Then
> > > and 
> > > > > > only then, the relevant authority for string
> challenges
> > > (an
> > > > > expert
> > > > > > panel?) will proceed under the guiding of this
> policy 
> > > > > > recommendation. But we may not need this level of
> detail
> > > in 
> > > > > > the policy rule. A more general level of language
> such
> > > as 
> > > > > > "approval or rejection of a string must not
> infringe,
> > > etc." 
> > > > > > is clear enough and a good fit for a policy.
> > > > > > 
> > > > > > Now, if one wants to make sure that this is only a
> > > challenge
> > > > > 
> > > > > > process issue, not ICANN's as organization (Board or
> > > staff -
> > > > > 
> > > > > > and that's the meaning of the term 'ICANN'
> hereafter),
> > > one 
> > > > > > may want the new gTLD policy to make allowance for
> the
> > > > > following:
> > > > > > 
> > > > > > 1. Make sure that it is clear in the overall new
> gTLD
> > > policy
> > > > > 
> > > > > > that ICANN do not have to, and will not make
> decision
> > > about 
> > > > > > an application string, except for purely technical
> > > reasons 
> > > > > > related to the DNS operation;
> > > > > > 
> > > > > > 2. In that sense and as long as ICANN is concerned,
> any 
> > > > > > string criteria policy pertains to technical
> creiteria
> > > > > policy 
> > > > > > and should be dealt with in the relevant policy
> > > > > recommendations;
> > > > > > 
> > > > > > 3. Then and beyond the above, ensure that the
> > > consideration 
> > > > > > of any challenge/objection to the string by the
> relevant
> > > 
> > > > > > authority (e.g., expert panel?), while trying to do
> > > justice 
> > > > > > to the challenger (e.g., trademark holder) do not
> > > infringe 
> > > > > > the rights of the applicant whenever they exist and
> as 
> > > > > > recognized under international principles of law.
> > > > > > 
> > > > > > In a nutshell, the best way to avoid further
> exposing
> > > the 
> > > > > > organization ICANN to string-related disputes is
> first
> > > to 
> > > > > > make it clear that it is not in the business of
> > > approving or
> > > > > 
> > > > > > rejecting TLD strings per se. It then means these
> issues
> > > > > will 
> > > > > > be dealt with by a different and _independent_
> mechanism
> > > or 
> > > > > > entity from ICANN, in conditions that are agreeable
> to
> > > both
> > > > > parties.
> > > > > > 
> > > > > > I'm not expressing any preference, but just
> exploring
> > > the 
> > > > > > logical options for what we want to achieve.
> > > > > > 
> > > > > > Mawaki 
> > > > > >    
> > > > > > 
> > > > > > --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> > > > > > 
> > > > > > > Hopefully our criteria for filing objections will
> be
> > > as
> > > > > clear as 
> > > > > > > possible so we can minimize challenges that will
> not
> > > have 
> > > > > > merit, but 
> > > > > > > the reality is that there will probably be some,
> so it
> > > 
> > > > > > seems important 
> > > > > > > to make sure that we are explicit about how the
> > > dispute
> > > > > panels 
> > > > > > > evaluate all challenges. If my understanding is
> > > correct,
> > > > > if 
> > > > > > a rights 
> > > > > > > challenge is submitted, the panel would evaluate
> the 
> > > > > > challenge based 
> > > > > > > on all rights that are based on international
> > > principles
> > > > > of 
> > > > > > law.  For 
> > > > > > > example, if a string was challenged because of IP
> > > rights,
> > > > > that 
> > > > > > > challenge must be evaluated based not just on IP
> > > rights 
> > > > > > contained in 
> > > > > > > international principles of law but also would be
> > > weighed 
> > > > > > relative to 
> > > > > > > other rights contained in international principles
> of
> > > law
> > > > > to the 
> > > > > > > extent that rights may conflict.  Is that
> consistent
> > > with 
> > > > > > what others 
> > > > > > > think?
> > > > > > > 
> > > > > > > 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: Tuesday, July 03, 2007 10:08 AM
> > > > > > > > To: Gomes, Chuck
> > > > > > > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > > > > > > Subject: Re: [gtld-council] proposed new Rec.
> #21
> > > > > > > > 
> > > > > > > > Thanks Chuck.   Rec #21 does not create any
> > > different 
> > > > > > > > exposure for the 
> > > > > > > > board than Rec #3 does.
> > > > > > > > 
> > > > > > > > We are trying to narrow the types of objections
> that
> > > can
> > > > > > > send 
> > > > > > > > an applicant to an expert panel.  Those
> objections
> > > based
> > > > > 
> > > > > > > > solely on viewpoint would not go an expert panel
> > > because
> > > > > > > that 
> > > > > > > > would not respect existing legal rights.
> > > > > > > > 
> > > > > > > > Robin
> > > > > > > > 
> > > > > > > > Gomes, Chuck wrote:
> > > > > > > > 
> > > > > > > > >Thanks Robin.
> > > > > > > > >
> > > > > > > > >It seems to me that this wording may go counter
> to
> > > one
> > > > > of
> > > > > > > the 
> > > > > > > > >objectives we have pursued for a long time on
> the
> > > New
> > > > > gTLD 
> > > > > > > > Committee, 
> > > > > > > > >that is to attempt to not put the ICANN Board
> in a
> > > > > > > situtation where 
> > > > > > > > >they are overly exposed to risk.  I understand
> > > Milton's
> > > > > 
> > > > > > > > point that it 
> > > > > > > > >may be impossible to limit all risk in that
> regard
> > > > > because 
> > > > > > > > they are the 
> > > > > > > > >overall coordinator of the process.  But I
> still
> > > think
> > > > > we 
> > > > > > > > should try to 
> > > > > > > > >minimize their exposure.  In that regard, would
> the
> > > 
> > > > > > > > following word work for you.
> > > > > > > > >
> > > > > > > > >"The expert panel tasked with evaluating any
> string
> > > > > > > challenges filed 
> > > > > > > > >must weigh an applicant's freedom of expression
> > > rights
> > > > > as 
> > > > > > > > contained in 
> > > > > > > > >internationally recognized principles of law."
> > > > > > > > >
> > > > > > > > >I suspect others may be able to word this
> better
> > > than
> > > > > me, 
> > > > > > > > but my goal 
> > > > > > > > >is focus on the what the expert panel would
> need to
> > > do
> > > > > > > rather than 
> > > > > > > > >focus on the over all string selection process.
> > > > > > > > >
> > > > > > > > >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: Tuesday, July 03, 2007 8:42 AM
> > > > > > > > >>To: gtld-council@xxxxxxxxxxxxxx
> > > > > > > > >>Cc: Milton Mueller
> > > > > > > > >>Subject: [gtld-council] proposed new Rec. #21
> > > > > > > > >>
> > > > > > > > >>How about the following for a proposed new Rec
> > > #21?
> > > > > > > > >>
> > > > > > > > >>"The string evaluation process must not
> infringe
> > > the
> > > > > > > applicant's 
> > > > > > > > >>freedom of expression rights that are
> enforceable
> > > > > under 
> > > > > > > > >>internationally recognized principles of law."
> > > > > > > > >>
> > > > > > > > >>Thanks,
> > > > > > > > >>Robin
> > > > > > > > >>    
> > > > > > > > >>
> > > > > > > > >
> > > > > > > > >  
> > > > > > > > >
> > > > > > > > 
> > > > > > > > 
> > > > > > > 
> > > > > > > 
> > > > > > 
> > > > > > 
> > > > > 
> > > > > 
> > > > 
> > > > 
> > > 
> > 
> > 
>