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Inventing special rights in this way de-legitimizes ICANN as a global governance institution. ICANN must learn to respect process & principle in the face of political pressure.

  • To: ioc-rcrc-proposal@xxxxxxxxx
  • Subject: Inventing special rights in this way de-legitimizes ICANN as a global governance institution. ICANN must learn to respect process & principle in the face of political pressure.
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Sun, 4 Mar 2012 17:05:43 -0800

RE:  Red Cross & International Olympic Committee Request to Ban Others' Use of 
Words in Domain Names That They Want for Themselves

Today I write to express my personal disappointment with the way ICANN has 
mis-handled this request for special rights to prohibit the use of certain 
words in domain names which are desired by politically powerful, but ultimately 
arbitrary, interests.

Unfortunately, this case represents another clear example of ICANN departing 
from its own established policies and stated principles of bottom-up governance 
to demonstrate that it is not quite ready to be a legitimate global governance 
institution that can be trusted to manage the security and stability of the 
domain name system in the public interest.  The Board/Staff's imposition of 
top-down policy that flies directly in the face of the policy that came from 
the GNSO's bottom-up process, and this attempt to manufacture consent to that 
top-down policy via this sham of an abbreviated comment period will not go 
unnoticed by ICANN's critics for years to come.

Just because the Red Cross (RC) is known for its aggressive fundraising 
activities at times of personal tragedy and the International Olympic Committee 
(IOC) is a popular sports licensing business does not mean these interests are 
legally entitled to such broad and sweeping privileges to block other 
legitimate uses of common words.  Legal academics contend that certain 
international treaties are mis-interpreted by the RC and IOC to convince ICANN 
to grant them even greater rights in domain names than what the law actually 
provides.  But ICANN claims there is no time to listen to legal experts, given 
the last minute minute nature of this request from RC and IOC.

Nor has the community ever reached consensus to grant these special privileges, 
indeed many voices in the ICANN community continue to object to this attempt to 
steam-roll policy from the top-down to achieve political expedience.  The 
concerns expressed by the Non-Commercial Users Constituency (NCUC) and members 
of the At-Large community throughout this discussion have been entirely ignored 
in this steam-roll effort to manufacture consent to what has already been 
decided in a behind-the-scenes top-down manner.

As someone who has spent the better part of a decade trying to mobilize global 
civil society to engage in ICANN policymaking, I can say with great experience 
that cases like this, where ICANN circumvents legitimate process to favor 
special interests, are often the reason provided by public interest 
organizations to explain why they are not willing to invest their energy in 
participating in the so-called "bottom-up" policy development at ICANN.  

A more appropriate starting point for this IOC/RC request - and threshold 
question in any serious policy development forum - would be for the IOC and RC 
to explain why existing protections in new gtld policy are insufficient to 
protect their interests.  Yet no case has attempted to be made, nor has ICANN's 
Board/Staff, Governmental Advisory Council (GAC), or business communities asked 
this threshold question of IOC and RC, who are requesting unprecedented rights 
based on shaky legal claims.   

ICANN's mis-handling of this IOC/RC request will haunt the organization for 
years to come.  The Governmental Advisory Council (GAC) has further 
relinquished its responsibility to protect the public interest, instead acting 
merely as a tool for select intellectual property interests without regard for 
other legitimate interests.  The Board/Staff have shown they are willing to 
"make it up as they go along" in order to please the politically powerful, 
without regard for the dangerous precedent set for the organization by such 
arbitrary favoritism.

Is there anyone at ICANN who cares about following proper procedure?

Robin Gross, IP Justice

Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx

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