Comments of Professor Milton Mueller

["Milton L Mueller" <mueller@xxxxxxx>]

I commend ICANN GNSO for finally, after 8 years, defining an ongoing
process for the addition of new gTLDs. That being said, the policies in
this report have some major flaws that the Board must correct before
implementation.

Freedom of expression issues:
============================
The current draft thrusts ICANN into new territory, asking it to censor
or select domain names based on their semantic meaning on an ex ante
basis. This is a bad idea, it will increase the risk of litigation and
the politicization of the process.

I endorse the dissenting report of the NCUC on Recommendation #6.

I endorse the dissenting report of the NCUC on Recommendation #20 and
implementation guidelines F, H and P.

ICANN needs to make the top level domain name selection process as close
to the second-level process as possible. That is, it should be a neutral
registry and use objective, predictable procedures for authorizing
domains and resolving contention over strings. Legal and other conflicts
over those names should be handled outside the ICANN process, ex post,
relying on national and agreed international law. 

Economic issues:
===============
The process makes the barriers to entry too high. While I agree with the
principle that applicants should pay a fee that makes the application
process sustainable, prior experience with ICANN fees indicates that
these will six-figure sums. Financial criteria for new registries tend
to be too heavy. Every major registry that exists today started small
and probably would not have qualified for an ICANN award under its
operational, financial and technical requirements.

Auctions should be used to resolve string contention among commercial
applicants. Lotteries should be used to resolve string contention among
noncommercial applicants. Expert panels should not be used at all; they
are expensive, their composition can be manipulated easily, and the
unpredictablity of their decisions contradicts Recommendation 9.

There should not be a requirement that new gTLD registries use ICANN
accredited registrars. This restricts the ability of businesses to
propose new business models. The addition of many new competing
registries undermines the rationale for universal application of the
registrar-registry model, which was predicated on the dominance of one
registry.

GAC Principles
==============

I object strongly to the GAC's attempt to assert sweeping new rights
over names without any legal basis. In particular, the claims that
"before the new gTLD is introduced, appropriate procedures for blocking,
at no cost and upon demand of governments, public authorities or IGOs,
names with national or geographic significance at the second level of
any new gTLD" should be ignored by ICANN. It is an extra-legal,
undemocratic, and arbitrary exercise of power by states. Governments
need to cite specific, ratified international laws and treaties that
specify exactly which names they claim rights to and what criteria
uphold these rights. Likewise, the demand to "Ensure procedures to allow
governments, public authorities or IGOs to challenge abuses of names
with national or geographic significance at the second level of any new
gTLD" gives governments an open-ended invitation to challenge anything
they like, regardless of whether there is any internationally applicable
treaty or even a national law supporting their claims. No procedure can
be implemented unless there is legal authority for it.

Editorial
======
The report contains a lot of extraneous material at the beginning. I am
unsure of the relevance of a diagram of ARPANET.